The Ontario Human Rights Tribunal has awarded a record-breaking settlement in a case that shows the importance of considering all options when dealing with a disability case
The Ontario Human Rights Tribunal has granted the largest award ever received in a Canadian human rights case, including damages for lost wages, retroactive pension adjustments, as well as compensation for injury to dignity, feelings and self-respect.
Sharon Fair had worked for the Hamilton-Wentworth District School Board since 1994 as a supervisor in the regulated substances department of a school board, specifically dealing with asbestos. In 2001, she was diagnosed with a generalized anxiety disorder, specifically focused on fear of being held personally liable for an error.
The school board took the position that the medical evidence restricted the employee from all supervisory positions, as all supervisors face potential liability under the Occupational Health and Safety Act, while the employee claimed she was medically fit to return to any supervisor position which did not include asbestos removal. Fair was terminated in 2004 when she refused to return to her previous position.
The Tribunal concluded the school board had failed to accommodate the employee by failing to investigate possible forms of accommodation or exploring available alternative work. And while it acknowledged the employee’s responsibility to mitigate, it found the school board hadn’t proven this in its evidence.
Fair was awarded reinstatement, $419,283.89 in lost wages, compensation for lost benefits and pension, as well as $30,000 compensation for injury to dignity, feelings and self-respect.
The main reason for the hefty damages was the length of time until trial, which left the school board facing more than eight years of back pay. While there would have been an opportunity to settle during the mediation process, if the parties couldn’t find a middle ground there was no way to avoid ending up in front of the tribunal.
“It’s a very complicated scenario,” Mathews Dinsdale partner David Francis said. “The employer did a lot of things you should do and I find it hard to criticize an employer with an employee who is saying they get anxiety from being responsible for things that could hold liability. Where exactly is the saw off line?”
The employer had their own physician assess Fair and the physician’s opinion that was presented to the tribunal suggested she shouldn’t be in a job which entailed responsibility of a health and safety issue, nor any duty that would put her at risk personal liability.
While the Tribunal documents do not detail all the efforts made on the employer’s side, Francis said it was an “extreme” position for the employer to say there were no positions available that would protect Fair from personal liability, considering the size and sophistication of the organization.