Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2014 should have sought further medical infor- mation rather than terminate Campbell's employment. Because Revera had made a comprehensive effort to find Campbell al- ternate employment, the tribunal limited its award to $5,000 in damages for losses to Campbell's dignity, feelings and self- respect. Of note is the fact that Campbell also sought an order directing that Revera pay her severance pay under the Ontario Em- ployment Standards Act, 2000. e tribu- nal reviewed its earlier decision in Pilon v. Cornwall (City), where it had held that it had no jurisdiction to award severance pay as it did not view this "loss" as being attrib- utable to the discrimination. e tribunal therefore limited its award to damages for Revera's infringement under the code. Campbell applied to the Divisional Court for judicial review of the tribunal's deci- sion. She was seeking severance pay and more than the $5,000 awarded. e court denied her review request and upheld the tribunal's decision in its entirety, refusing to alter the $5,000 award which it found to be reasonable. e court also stated that in general a complaint made to the tribunal under the code was not a replacement or substitute for all other claims or actions that may arise in a given circumstance and specifi- cally pointed out that Campbell could have continued her grievance and pressed her human rights concerns without a need to commence a separate complaint or proce- dure. Takeaways for employers •Based on the Divisional Court's decision to uphold the tribunal's decision in Went- worth-Hamilton v. Fair, employers should expect to see a continued increase in the scope of damage awards for violations of human rights legislation. • Specifically, claimants and employee counsel alike will see the potential for much greater damages, whether via the human rights or civil litigation process. We may be moving to a more American- style view of damage awards for human rights violations. • Campbell v. Revera signals a growing pen- chant on behalf of employees to seek re- dress for "other damages" before human rights tribunals. As part of this trend, and as we've seen in the 2013 decision in Wil- son v. Solis Mexican Foods Inc., damages under the code for an employer's decision to terminate an employee based on the employee's disability can be in addition to awarding damages under the common law for wrongful dismissal. • While damage awards (like Fair) can be significant, Revera shows how important it is for employers to make every effort to follow the procedural requirements under the code to accommodate an employee's disability. e attempt to find suitable ac- commodation appeared to be a mitigating factor which reduced the overall scale of the tribunal's award. For more information see: • Fair v. Hamilton-Wentworth District School Board, 2014 CarswellOnt 13509 (Ont. Div. Ct.). • Campbell v. Revera Retirement LP, 2014 CarswellOnt 8102 (Ont. Div. Ct.). • Pilon v. Cornwall (City), 2012 HRTO 177 (Ont. Human Rights Trib.). • Wilson v. Solis Mexican Foods Inc., 2013 CarswellOnt 13851 (Ont. S.C.J.). December 10, 2014 | Canadian Employment Law Today ABouT THE AuTHoR LOrenzO Lisi Lorenzo Lisi practises employment and labour law with Aird & Berlis LLP in Toronto. Aird & Berlis can be reached at (416) 863-1500 or www.airdberlis.com. credit: rt images/shutterstock

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