Canadian Employment Law Today

4 Canadian HR Reporter, a Thomson Reuters business 2014 Getting up to speed on human rights Two Ontario cases showcase possible trends in human rights decisions employers need to be aware of going into 2015 By LorEnzo LiSi A s we come to the close of 2014, two recent decisions of the On- tario Divisional Court dealing with employers' efforts to accommodate disabled employees should be on every employers' radar. e first is Hamilton-Wentworth District School Board v. Fair, where the court up- held one of the largest damage awards ever awarded by the Human Rights Tribu- nal of Ontario. e second is Campbell v. Revera Re- tirement LP, where the court upheld a tribunal award that limited damages to only those flowing from harm caused by discrimination and not from a separate common law cause of action. hamilton-Wentworth v. Fair e scale of the award and the fact that the tribunal ordered an employee's reinstate- ment despite being away from the work- place for almost a decade has made this case a topic of considerable discussion. Recall that the tribunal found the Hamilton-Wentworth School Board had discriminated against Sharon Fair when it terminated her employment because of her disability contrary to the Ontario Hu- man Rights Code. e tribunal ordered that Fair's employment be reinstated (de- spite the fact that she had been away from work for approximately 10 years) and that she be financially compensated for all losses arising from the breach of the code, which amounted to reinstatement and monetary compensation in the range of $400,000 for lost wages, lost pension con- tributions, lost Canada Pension Plan pay- ments, medical and dental expenses paid out of pocket, and $30,000 as compensa- tion for injury to dignity, feelings and self- respect. Fair worked for the school board for more than 16 years and was employed as the supervisor of regulated substances (asbestos) at the time of the termination of her employment. She developed a gen- eralized anxiety disorder in reaction to the highly stressful nature of her job and the fear that she could be held personally li- able for any mistakes made in removing asbestos. Fair took a leave from work for approximately three years and received long-term disability benefits. She was later assessed as being capable of return- ing to her employment. e school board, however, failed to take any steps to inves- tigate possible forms of accommodation and failed to offer Fair available, applica- ble work (despite the tribunal finding that there were positions available for which she was qualified). Because of this, the tribunal found that the school board had failed to take all possible steps to accom- modate Fair. In upholding the tribunal's decision, the Ontario Divisional Court noted that while the order for reinstatement was un- usual, it was a permissible remedy under the code and refused to overturn the tri- bunal's award. e court therefore upheld the award in its entirety. Campbell v. revera Louisa Campbell was employed as a per- sonal support worker at an assisted liv- ing residence by Revera Retirement LP for more than 20 years. Her position in- volved caring for elderly residents, which included bathing, feeding, dressing and transporting those in her care. Camp- bell developed lipodermatosclerosis, a condition that caused swelling, discom- fort, thickening and discolouration of the skin in her legs and feet. is condition was exacerbated by prolonged standing and walking. As Campbell's position as a personal care worker involved a large amount of standing and walking, she took an extended sick leave. After almost two years away from Re- vera, Campbell's doctor determined that she was capable of returning to modified duties. Upon her return to work, it was determined Campbell could not perform modified duties as a personal support worker. Revera canvassed suitable posi- tions and offered Campbell a position in its laundry facilities. Campbell felt the du- ties in the new position were not within her medical restrictions, as she would have to lift heavy laundry loads, stand while folding laundry and sweep under machines. Revera disagreed, stating that Campbell would not be required to go up and down stairs, could sit while folding laundry, and would not have to sweep under machines. In its view, Revera was able to accommo- date Campbell's restrictions in the posi- tion as a laundry attendant. Campbell's doctor provided a further note from stat- ing that she was "unable to do any kind of laundry work." Revera took the position that there was no medical information regarding Campbell's restrictions and ter- minated her employment, treating it as abandoned. Campbell was a unionized employee and initially filed a grievance. She chose, however, not to pursue the grievance and brought a complaint to the Ontario Hu- man Rights Tribunal, where she sought compensation for damages to her dignity, feelings and self-respect, as well as sever- ance pay owing upon termination. e tribunal determined that Revera had failed to meet its procedural obliga- tions under the Ontario Human Rights Code by failing to accommodate Camp- bell. While the HRTO found no fault with Revera's accommodation efforts up to the point of termination, it held that Revera CasE in point: HUMAN RIGHTS Human riGHts awareness is essential for employers when it comes to issues such as discrimination and accommodation. Such awareness is increasing in society as a whole, so if employers don't live up to their obligations in protecting their employees' human rights, they face not only possible financial consequences, but also a risk of harm to their public image. Both can be seriously damaging to business. As one year ends and another begins, it's a good idea to take stock of where things are in terms of human rights and employment law. Employment lawyer Lorenzo Lisi discusses two notable cases in 2014 that have some important lessons for employers going into 2015. BaCKGrOunD

• Cover