Shortly after the Ontario Human Rights Commission released its policy on mental-health disabilities earlier this year, along comes a Divisional Court decision that offers some useful guidance on the issue.
On Sept. 29, the Divisional Court ruled on the Hamilton-Wentworth District School Board’s appeal of a Human Rights Tribunal of Ontario decision ordering it to reinstate an employee who had suffered from an anxiety disorder related to her job as a supervisor dealing with asbestos.
According to adjudicator Kaye Joachim’s 2013 decision on the remedy in the case, the employee, Sharon Fair, had developed a generalized anxiety disorder due to the stress of her job and her fear that, in making a mistake about asbestos removal, she could be liable for a health and safety breach. The board terminated her in 2004 after she had been on disability leave since 2001.
Key to Joachim’s decision was the finding that there were two suitable jobs Fair could have filled as early as June 2003. While the board suggested it wasn’t going to fill one of the jobs due to financial reasons and the other one wasn’t really vacant, Joachim found it never had any real intention to accommodate Fair.
Besides documentary evidence to that effect, Fair testified about a meeting in which the controller of plant operations told her she was either fit to return to her former position or she wasn’t suitable to come back to the department at all.
As the Divisional Court noted in dismissing the school board board’s appeal, reinstatement is an unusual remedy in human rights cases. But as the court found, the tribunal does have broad authority to ensure compliance with Ontario’s Human Rights Code. And with the commission having reinforced employers’ duties to accommodate disabilities related to mental health, it’s certainly timely for the court to be weighing in on the issue and making it clear that their obligations can include reinstatement.
Given the need to make those discriminated against whole, reinstatement to a suitable alternative job is a reasonable option when it comes to remedies in human rights matters.
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Glenn Kauth
