D Reinstatement

D Reinstatement

Reinstatement and Instatement

Reinstatement is obviously a very powerful remedy. Apart from the order itself, the request for the order will more readily support a lost income claim to the date of hearing and also, arguably, may be used to buttress a plea for a prospective income loss beyond the date of hearing when the reinstatement order has been denied.

Ontario

The analysis which follows will show that reinstatement was considered “the prime remedy” for many years in Ontario. In recent years, the frequency of such orders has, for unknown reasons, become less evident. In the current context, the mantra has been cited to describe this remedy as one which has been “rarely requested or ordered”¹, a description which is submitted is an unflattering and inaccurate assessment of this relief.

The recent decision of which allowed for such a remedy,² now confirmed by the Ontario Court of Appeal, may prove to be the bell weather³.

There can be no doubt that the tribunal is empowered to order reinstatement⁴. It is a remedy which was considered appropriate by Wilson J. in her dissent in an age discrimination case.⁵⁶

There are a host of early cases awarding reinstatement in the early days of the interpretation of the prior human rights statutes⁷. Indeed, reinstatement was once stated to be the “primary remedy”⁸.

The initial order⁹ granted by the Board of Inquiry¹⁰ in December of 1996, is instructive of the issues to be considered by the decision maker in such a circumstance.

The Board noted that arbitral jurisprudence had determined that “so long as the employment relationship appears to be viable, reinstatement orders will issue” and further observed that the remedial powers found in the Code were similar to those given to labour arbitrators. In ordering reinstatement, the Board saw this remedy as the means by which the remedy of restitution may be attained:

It is also open to a board of inquiry to issue guidelines to accompany an order of reinstatement that will assist the parties in effecting a successful reconciliation. This appears to be precisely the sort of case which would benefit from this flexibility of approach. The evidence in this case suggests that an order for reinstatement may not result in a seamless re-entry into the automotive plant for Mr. Naraine. To attempt to maximize the prospects for success, movement is required from both sides to this dispute¹¹.

The modern administrative decisions are bereft of any acknowledgement of the jurisprudence set out above. The cited decisions have not been referenced, either in support of, opposed to, accepted, rejected or distinguished in the recent analyses pondering the award of reinstatement.

The words of then Professor Cummings¹² which described as the order of reinstatement as the “prime remedy” have somehow, for unknown reasons, fallen to wayside. That which was first set out so fundamentally as the default remedy, admittedly strong words, has been recently characterized as “rarely requested or ordered”, words which, it is submitted, are not fairly descriptive of the remedy, even in the current context.

Although this remedy has certainly not been considered recently as the “primary” remedy, it has nonetheless be granted on numerous occasions since 2000.

An unusual limited instatement order to a position of a more junior responsibility was made to counter the apparent damage the applicant had suffered to his reputation. In this instance it had been found that the termination of employment had not been caused by a code violation ¹³. It was determined that the ability of the complainant to find alternate employment in his vocation had been adversely effected by his treatment while employed by the respondent.

Reinstatement has been found to be the correct method of restoring the status quo¹⁴ in many cases¹⁵, reflecting the principles as set by the Court of Appeal. It is a firm precept of human rights legislation that the objective of the remedy is “to put the applicant in the position that he or she would have been in had the discrimination not taken place”.¹⁶¹⁷

There may be qualifiers to the reinstatement remedy, such as “where viable”¹⁸, or that even where so possible, reinstatement is “sometimes”¹⁹ the only remedy which may allow for the establishment of this “make whole” principle.

In arbitral cases, reinstatement is generally considered the default remedy to counter a termination unless there are legitimate concerns that “the employment relationship is no longer viable”²⁰.

The size of the company’s workforce has, one occasion, been ignored²¹ and on occasions referenced as an issue in favour of reinstatement²², and in one case the brief employment history was seen as uninfluential.

A contrary view has been expressed, suggesting that reinstatement should be confined to an environment of a large unionized employer²³, or that the worker was unskilled²⁴, or that such a remedy is not appropriate in human rights cases where liability is based on an influential factor as opposed to the sole factor²⁵.

It is difficult to imagine a remedy which is shaped by the reasoning by which liability was determined, apart from a concept which parallels contributory negligence.

This being stated, it is noted that similar reasoning was used, coupled with other reasons, in denying reinstatement²⁶.

The argument against reinstatement would be more logically supported if the extraneous factors may have been proven to have militated against a continuation of the employment relationship. For example, if the complainant was terminated due to a physical disability, yet also exhibited legitimate performance issues, then it is conceivable a submission could be made that the application of the but-for test would have concluded that the relationship was otherwise doomed to fail, as opposed to the theory that if the Code was but a proximate cause, therefore, the remedy should not follow as a determined rule.

Notwithstanding all of the above, the decision of Fair v Hamilton-Wentworth District School Board²⁷, (Joachim), released on March 14, 2013 ordered reinstatement. The Tribunal had found that the employer had treated the applicant unfairly due to a disability by failing to accommodate her disability-related needs from April 2003 and then by terminating her employment on July 9, 2004.

The Tribunal also made reference to the remedy of reinstatement in an arbitral context to the effect that reinstatement is the default remedy in this context.

It was also noted that there was no personal animosity between the parties and that the employer was a large entity with a sophisticated management structure. All factors considered, there was no prejudice caused by the reinstatement request.

The argument advanced by the employer that reinstatement would be unfair due to the passing of 8.5 years from termination to the date of the remedy was not successful. The delay was determined not to be to any failing of the applicant.

There may be some issue taken to the human rights tribunal relying upon arbitral authority as a means to support the reinstatement order. There is nothing noteworthy about this as many fundamental concepts in human rights principles have found their origin in arbitral decisions. This includes the need to establish but a prima facie case and the concept of liability be shown by a cause, not the sole cause. Similarly the process of evidence by reasonable inference found its initial reasoning from arbitral jurisprudence.

This case has now been upheld by the Court of Appeal.

One might expect that the employer would raise a submission that the employment relationship may be one which is difficult to resurrect as a consequence of a hearing involving evidence and issues which are likely to be emotionally charged and arguably destructive of inherent good will required for a continued life between the parties.

The views of the Federal Court, discussed below, may be an apt rebuttal consideration for such an argument. It was concluded in that instance that this submission must be tempered by the fact that it was the wrongful conduct of the employer which led to the need for the litigation²⁸.

Many of the early decisions deal with the issue of the impact of a reinstatement order upon innocent third parties.

In a unionized work environment, there will exist rights of the party effected pursuant to the terms of the collective agreement and hence the impact of such an order upon such a person will be cushioned by the protective terms of the agreement.

Professor Cumming made note of such provisions in Rand v Sealy referenced above, when he ordered that the complainant be reinstated. A similar reference was made by the same decision maker in Singh v Security and Investigation noting that no present employee would be adversely effected by the order that an offer of employment be extended.

The impact of the reinstatement remedy on innocent third parties has also been viewed as a critical factor in declining reinstatement²⁹.

Other Canadian Jurisdictions

Reinstatement is a common concept in other Canadian jurisdictions. The wording of the legislation varies but it typically provides authority to the human rights tribunal to take such action to remedy the wrong doing or alternatively specifically empowers reinstatement.

The interpretation of this provision allows the Tribunal to consider in its discretion whether reinstatement is viable in the context of the facts before it.

It is not a default remedy as may expected in arbitral jurisprudence, apart from two cases under the federal court referenced below which spoke of the “duty” to attempt to reinstate, a decision which has not been referenced as authority for this concept subsequently.

The comparison is also offered to put the Ontario remedy in some degree of perspective. Reinstatement is viewed as a discretionary remedy and has been ordered when considered appropriate with due regard to all factors in play in the remaining common law jurisdictions.

The complainant appears to have the onus although this is not specifically defined in the case law, although given that remedy is discretionary, this is a fair presumption. The cases are all very much fact driven, but typically the decision maker seeks to determine if the remedy is viable by assessing if the work environment has fallen into an unworkable circumstance by the degree of angst between the parties. Also there usually there follows an examination of the relative prejudice caused to either party by such an order.

Apart from the factual underpinning, the really only contentious issue is whether there should be some consideration given to why any apparent animosity between the parties has come to exist.

One case does speak to this issue where such ill will is caused by the litigation, in that it is the conduct of the wrongdoer which brought about the adversity and hence should be of no moment to the requested relief. This will be particularly so in a case involving allegations of sexual harassment. This does make logical sense. It would appear unfair to deny such a remedy when the source of a personality conflict emanated from the very wrongdoing which the remedy seeks to redress.

Reinstatement is not considered an unusual remedy under the Canadian Human Rights Act. Many decisions have routinely ordered this relief as the means by which the complainant has been restored to the former position.³⁰ In one decision³¹, a case of sexual harassment, the panel noted that reinstatement was unworkable due to apparent bitterness between the parties, at least in the position sought, a conclusion which did not deny the complainant from reinstatement yet to an alternate position. The applicant successfully reviewed this decision³². She was reinstated. The Federal court noted that it was employee who was the innocent party and hence could not be held accountable for the “bitterness” and the “recipe for disaster” noted by the panel.

The tribunal has also spoke to the “duty”³³ to attempt to restore complainant to “the position she would have been in, but for”, in a complaint based on race and colour.

The passing of time seems to be of no moment. An order of reinstatement has been made 13 years after the termination³⁴. In the same case, the applicant was instated to a higher level position that that which he held previously³⁵, based on his argument should would have unfolded in the natural progression. The issue of the inconsequential effect of the passing of time is not a universal truth. In one case it was determining that the lengthy passing of time would place the applicant in a position superior to current employees then laid off³⁶.

This position is in conflict with the basic objective of restoration of the status quo. The decision should reflect that which would have followed. Had the complainant likely been laid off in any event of the wrongdoing, then the remedy should reflect this.

In B.C, generally the test of reinstatement is one to determine if the relationship is one which remains viable³⁷.

In Alberta, the remedy certainly is also not reflexive³⁸, but as in the case of British Columbia cases, has been exercised as a matter of contextual discretion. The factors considered will include the degree of any ill will from one party to the other, whether the relationship remained viable even through the litigation process, the degree of prejudice to be caused by the requested order and in this case, the apparent benefit to the complainant, given that she remained unemployed³⁹.

One case weighed the significance of the impact of such an order upon the applicant’s life⁴⁰Saskatchewan again applies the same principle⁴¹ and in so doing, also considered the application of the “but-for” test⁴². In a case involving a disability of cerebral palsy. The tribunal determined that were it not for the adverse treatment, the employee would have completed his casual employee status and have been transferred to permanent status, as was ordered.

A New Brunswick panel applied the same test as whether the relationship was viable the absence of any chasm between the parties on a personal level⁴³, which presumably would have been a factor in assessing the propriety of reinstatement⁴⁴.

The Tribunal noted in that the “usual remedy” is to allow reinstatement when a violation of the statute has been found⁴⁵.

The general view again is that the remedy must be viable. The evidence of the complainant to the effect that he doubted reinstatement would be a positive experience for him was considered a negative factor to deny the award⁴⁶.

One factor in allowing reinstatement in an age discrimination case was that the complainants were all over the age of 65 and otherwise would have suffered economic hardship in finding employment⁴⁷.

An order of reinstatement can be made even where the applicant does not return to active employment⁴⁸. This can have tremendous significance as noted below.

The remedy under the Canada Labour Code has been interpreted on a similar basis, namely that while the intent is to apply a “make whole” philosophy, reinstatement is a discretionary remedy⁴⁹. In this instance the first level decision maker had denied reinstatement due to the dishonesty of the complainant in not reporting post-termination income during the period she had asserted that she was disabled and unable to work, which was first revealed in her cross-examination during the hearing.

This decision reversed on this issue on first instance in review by the Federal Court. The Federal Court of Appeal set aside the decision of the motions judge and ordered that the decision of the adjudicator stand. The remedy of reinstatement was one which within the discretion of the adjudicator. The issue of trust was fundamental to the existence of a continued employment relationship.

Reinstatement to Inactive Employment

Few cases consider the proposition that one possibly contemplated event may be the continuation of the employment relationship without active day to day employment. There may be a reason why the employee cannot take on active employment, such as a present disability suffered by a woman who has been harassed.

Many pension plans allow for pension credits to the employee while on disability, and also other employment medical and similar benefits. It may also be important for seniority purposes or vacation entitlements which may be based on length of service. Another reason is the need for “employment” for a later recurrent disability.

This may raise also the issue of a reinstatement remedy without the necessity of active employment, but rather simply to order that the employment relationship remains intact for purposes of such benefits. A foundation in the form of an employer policy document or a pension plan with such terms would likely be required to support such an argument.

In one human rights case, the complainant, due to a vision disability, was unable to work and had been absent from active employment from April 2007 until his eventual dismissal in September of 2011. It was accepted that his medical impairment was permanent and he would be unlikely to return to active work. He continued to receive LTD benefits.⁵⁰

The employer also continued to provide MSP and extended health care premiums. The employer alleged that it offered to maintain his employment status until his 65th birthdate to maintain his group disability benefits, if the complainant paid the premiums, an offer which was declined and on which the evidence was disputed.

The complainant argued that it was not a BFOR that he report for active employment.

The claim was based on two arguments, the first being based on the threat of the termination of the MSP and health premiums, which was later rescinded and secondly, based on the termination of his employment.

The first argument was not effective, as the employer had withdrawn its threat and had continued the benefits.

As to the second submission, an issue arose as to whether continued active employment was a pre-condition to the entitlement to continued disability payments. The determination of the argument was delayed pending the response from the employer to this issue, one which ultimately had shown that continued active employment was not such a prerequisite to continued disability benefits. The motion was successful and the claim was dismissed.

It is clear, however, that the tribunal was prepared to consider argument on the issue of reinstatement to non-active employment if this was factually required to allow for disability coverage.

The tribunal did, however, to the point at issue, note that certain disability plans require employment status and observed arbitral authority for the conclusion that active employment, in such a circumstance, would not be required for reinstatement.

One such arbitral decision as referenced in the human rights case⁵¹ stood for this very proposition, namely, that reinstatement to inactive employment is a proper remedy and that active employment is not a pre-condition to such relief.

In a second human rights case⁵², the employer had closed its mill operation in Squamish with no likely possibility of re-opening it. It was not initially providing employment or compensation, including health and welfare benefits to any of the Squamish crew at the date of termination. For this reason, it was argued that MacRae was treated in the same manner as his colleagues.

The applicant had been terminated for non-culpable absenteeism due to a serious medical issue eleven days before an agreement was reached with the union that allowed employees on lay-off entitlement to a substantial severance payment.

It was determined, by the tribunal, however, that where a plant shutdown was in the offing, that the ability to perform work was not a BFOR and that the complainant’s employment was terminated to prevent him from receiving severance pay and was hence a violation of the Code.

The Tribunal concluded that such a decision to terminate had the direct impact of causing the loss of such a right of severance pay and hence was a basis to show an “extraneous motive” which thus may establish a prohibited adverse discriminatory intent.

If such a decision was motivated by an intent to deprive disabled persons a severance payment that was available to all other employees, such would lead to a finding of discrimination.

The British Columbia Court of Appeal⁵³ in the concurring reasons of Mr. Justice Groberman specifically stated that he was not endorsing the decision in MacRae. The reasons of the Chief Justice did not speak to this issue.

Groberman J.A. did agree that it was arguable in this situation of a shutdown, that the employee need not have the capacity to work. This issue remained undecided, was the stated view.

Such an order was made in the decision of the Yukon Human Rights Board of Adjudication⁵⁴ which found liability against the respondent due to its adverse treatment of the applicant who suffered from a debilitating liver disease. An order of reinstatement was made even when the applicant was unable to return to active employment.

A recent arbitral decision⁵⁵ provides an excellent review of arbitral case law on this subject.

On the facts of this case, the employer terminated 29 employees, all of whom were on LTD benefits which resulted in five individual rights grievances and a policy grievance.

All employees were given notice as required by the ESA and paid the statutory severance sums. Apart from LTD benefits, which were not adversely effected, all other benefits terminated at the end of the ESA notice period.

One argument put forward by the union was that the interpretation of the collective agreement allowed for continuation of benefits during the period of the disability and hence the termination denied such benefits such as group life, accidental death and dismemberment and the prescription drug plan. Reinstatement should hence follow to allow for the continuation of such benefits became the submission.

The essential issue to be determined was whether the collective agreement contemplated the continuation of benefits beyond the basic LTD and hence precluded the company from termination due to innocent absenteeism.

To this end, arbitrator Marcotte examined many precedent cases which were factually driven and dependent on the interpretation made of the particular collective agreement in each instance.

One such decision⁵⁶ concluded that the existence of a disability plan under a collective agreement may limit the right of the employer to terminate a disabled employee, where the consequence of such action would be the loss of long-term disability or other benefits.

Returning to the decision of Arbitrator Marcotte, he concluded that the terms of the the collective agreement may limit the right of the employer to terminate for innocent absenteeism.

The distinction was noted between benefits which arise directly from the illness or injury and those which are tied simply to employment. To argue that termination is not allowed due to a loss of benefits, such claim for benefits must be related to the former.

Arbitrator Marcotte summarized the arbitral jurisprudence as allowing for termination of the disabled employee provided that that the termination of employment does not interfere with the employee’s continued entitlement to LTD benefits or other benefits as allowed by the agreement, such as extended health care or dental plans.

Essentially, this involves a review of the collective agreement to determine if additional benefits were intended to be provided to the disabled employee during the period of LTD eligibility, which, in this instance, were found to be lacking and hence the termination decision was upheld.

The Ontario Superior Court in the 2007 decision of Mr. Justice Perell of Dragone v Riva Plumbing considered the motion made by the plaintiff for declaratory relief that the employment relationship remained intact to allow the plaintiff to claim coverage under medical, drug and dental insurance plans.

A dispute had arisen between the parties as to whether the employment relationship had ended due to the plaintiff`s resignation and hence the case is not demonstrative of a declaration to reinstate the plaintiff back to employment following a direct termination.

On this issue, the court found that the evidence demonstrated that there was no evidence of a clear and unequivocal intention to resign communicated by the plaintiff.

The plaintiff was not in active employment and in receipt of long term disability benefits when the application was made 14 months after her last active day of employment.

A declaration that the plaintiff remained employed was granted, in addition to an order that the employer continue to maintain medical, dental and drug insurance plans.

The Court also stated, albeit obiter, and without a definitive conclusion, that once the employer was made aware of the plaintiff`s medical disability of metastasized breast cancer, which preceded the evidentiary dispute surrounding her alleged resignation, any attempt made by it to amend the benefits coverage would have arguably been contrary to the Human Rights Code.

There is much logic in this view. There is every likelihood that a civil court would grant a similar order at the very least for the period of reasonable notice and where the evidence will support a connection of such benefits to long term disability insurance, for the period of disability.

1. Krieger v Toronto Police
2. Fair v Hamilton-Wentworth District School Board, (Joachim). This was a disability case.
3. upheld by Divisional Court, leave to appeal to the Court of Appeal granted May 1, 2015
4. The Ontario Court of Appeal in Ontario Human Rights Commission v Naraine, (leave to appeal to SCC refused [2002] SCCA No. 69) The reinstatement order below was set aside but not for a jurisdictional reason.
5. Wilson J., in her dissenting opinion in The Supreme Court of Canada decision of McKinney v University of Guelph, voiced a strong view in support of reinstatement as a remedy in an age discrimination case, noting the specific factors of the age of the plaintiffs, the particular prejudice suffered by them and the need to redress the wrong. The majority held against the plaintiffs in the action and hence did not address the issue of remedy.
6. Nilsson v University of Prince Edward Island agreed with the words of Wilson J. and ordered reinstatement in age discrimination case.
7. Segrave v Zeller’s Limited (Lederman); Rajput v Algoma University College (Tarnopolsky); The Board of Inquiry (Cumming) followed in the 1977 decision of Singh v Security and Investigation Services Limited; Snyker v The Fort FrancesRainy River Board of Education (Ratushny); Hall v Borough of Etobicoke Fire Department (Dunlop); Hartling v City of Timmins (Cumming); Rand and Canadian Union of Industrial Employees v Sealy Eastern Limited, Upholstery Division 3 CHRR D/938 (Cumming); Olarte et al v Commodore Business Machines Ltd. (Cumming) 4 CHRR D/1705, in which the reinstatement order was refused, the case was upheld in Divisional Court but this issue was not raised;Cameron v Nel-Gor Castle Nursing Home 1984 5 CHRR D/2170; Mark v Porcupine General Hospital (Cumming) 6 CHRRD/2538; Barnard v Canadian Corps of Commissionaires (Friedland). This case went to Divisional Court but not on this issue; Ontario Human Rights Commission and Karumanchiri et al v Liquor Control Board of Ontario 8 CHRR D/4076 (Baum), affirmed in Div Ct. Divisional Court 9 CHRR D/4868; Wiens v Inco Metals (Cumming) 9 CHRR D/4975; Morgoch v City of Ottawa; McKinnon v Ministry of Correctional Services #3
8. Cameron v Nel-Gor Castle Nursing Home 1984 5 CHRR D/2170xx
9. Naraine v Ford Motor Co. of Canada #5 28 CHRR D/267
10. Reversed by the Court of Appeal on other grounds.
11. On this subject, the Board noted the decision of the Federal Court, discussed below, in Pitawanakwatin which the Federal Court overturned the Tribunal decision which saw reinstatement as “a recipe for disaster”
12. Now Mr. Justice Cummings of the Ontario Superior Court
13. Moffatt v Kinark Childand Family Services (Laird)
14. Piazza v. Airport Taxi Cab (Malton) Assn.
15. Dhamrait v JVI Canada (Flaherty); The Board of Inquiry in Kearsley v St.Catharines (O’Leary); Krieger v Toronto Police Services (Overend); Tearne v City of Windsor (Sengupta)
16. See Impact Interiors Inc. v. Ontario (Human Rights Commission) (1998), 35 C.H.R.R. D/477 (Ont. C.A.) 
17. A case of the same genre, albeit not purely an employment reinstatement decision, is the May 2103 remedy segment of Chaudhry v Choice Taxi (Reaume). The applicant was a cab driver who had requested dispatch services from the respondent and with it the right to become a shareholder.The Tribunal ordered that the company provide the applicant with the first available opportunity to become a shareholder.
18. Krieger v Toronto Police 
19. Krieger v Toronto Police 
20. Alberta Union of Public Employees v. Lethbridge Community College, SCC at para. 56
21. Dhamrait v JVI Canada (Flaherty), a small company
22. In Krieger, it was noted that the respondent was a large and sophisticated employer; It was also unionized which was not specifically addressed as a factor, although it was stated that he applicant has the support of the Association as a reason for finding that reinstatement was viable; Fair v Hamilton-Went worth District School Board noted the size of the employer.
23. Suggesting a distinction to be found in Krieger in Macan v Strongco (Renton)
24. again suggesting a distinction of Dhamrait, as put forward also in Macan v Strongco (Renton)
25. Once again in Macan v Strongco (Renton)
26. in a decision of the British Columbia Human Rights Tribunal in J.J.v Coquitlam School Board (Beharrell);Nova Scotia Board of Inquiry in McLennan v MacTara. This was not the sole reason given to deny the remedy.
27. upheld by Divisional Court, leave to appeal to the Court of Appeal granted May 1 , 2015
28. Pitawanakwat v Department of Secretary of State (Gash, Serwa & Turner)
29. Rajput v Algoma (Tarnopolsky); Olarte v Commodore (Cumming); the decision of Baum in Karumanchiri, Divisional Court rejected the argument as the incumbent Parker clearly had notice of the remedy being sought; 1967 Court of Appeal decision of Re Bradley v Ottawa Professional Fire Fighters Association; There is no further guidance on the requirement to give notice in such instance in human rights administrative process, apart from the Divisional Court decision which clearly advocates such a concept. It would appear to be a prudent strategy to do so.
30. Canadian Human Rights Act which by section 53 provides specifically for such a remedy:Bernard v Waycobah Board of Education; Other decisions which have awarded reinstatement under the federal statute include Audet v CN (Hadjis), Chander v Canada (Tribunal – Norton, Ellis and Ramcharan ); upheld on review Chander v Canada (Federal Court), Eyerley v Seaspan ( Sinclair) , Grover v National Research Council (Fleck, Goldhar and Jordan), and Grover v National Research Council#2 (Fleck, Goldhar & Jordan), Cruden v Canadian International Development Agency (Marchildon), Parisien v Ottawa-Carleton Regional Transit (Hajdis), Cremona v Wardair Canada Inc. # 3 20 CHHR D/398, McAvinn v Strait Crossing BridgeLimited (Deschamps) , Singh v Statistics Canada (Mactavish
31. Pitawanakwat v Department of Secretary of State (Gash, Serwa & Turner)
32. the Federal Court decision allowed her application.
33. Canadian Human Rights Tribunal in Nkwazi v Canada(Correctional Services) (Mactavish); Desormeauxv Ottawa-Carleton (Mactavish), This decision was set aside on a preliminary review and subsequently restored by the Court of Appeal. These decisions did not deal with remedy.
34. Uzoaba v Correctional Services
35. As was upheld by Federal Court on judicial review.
36. McLennan v MacTara This was not the only reason given to deny the remedy
37. Kalyn v Vancouver Island Health Authority (Tyshynski); J.J.v Coquitlam School District. The tribunal decision was set aside on first review and then restored by the Court of Appeal; in Wyse v Coastal Wood Industries
38. Cowling v The Queen (Heafey) 
39. As was stated in the decision of Pitawanakwat, one might question the significance of ill will created by the litigation process, given it was the employer’s action which gave rise to the need to commence the process.
40. Weitmann v City of Calgary Electrical System (Bryant)
41. Merrick v Ipsco Saskatchewan Inc. (No. 3) 65 CHRR D/220) (drug dependency)
42. City of Regina v Kivela; An award for lost wages was made for five years from 1999 to 2003 and also the City was ordered to offer re-employment to such a permanent position when one was available.The Court of Appeal upheld the substance of the decision.(disability)
43. Labour and Employment Board of New Brunswick in Way v Department of Education (mandatory retirement)
44. A contrary finding was made in A. A. v New Brunswick (Department of Family and Community Services) [2004] N.B.H.R.B.I.D. No 4 (“A. A.”)
45. A.B v Brunswick News, although it was not ordered in this case.
46. McLennan v MacTara I have considered and rejected Mr. McLellan’s request for reinstatement. I do so for several reasons:
    1. I do not know whether there is a vacant entry position to which to restore Mr. McLellan;
    2. I have already explained that Mr. McLellan’s termination was not exclusively the result of physical disability discrimination. He was terminated with notice;
    3. Mr. McLellan doubts that reinstatement would be a positive experience for himself;
    I do not believe that it would benefit the public interest, or serve any instructive purpose for MacTara, in any way.
47. Nilsson v University of Prince Edward Island
48. Hayes v Yukon College 67 CHRR D/408 (Evans, Tkachuk and Riseborough) Yukon Human Rights Board of Adjudication (liver disease)
49. The Federal Court of Appeal in Sheiksholeslami v. Atomic Energy of Canada Ltd 
50. Hargrove v Phoenix Glass (Bernd Walter), a 2012 decision of the British Columbia Human Rights Tribunal in which the employer moved to dismiss on the submission of no reasonable prospect of success under section 27-1-c of the Code.
51. West Fraser Mills Ltd. (Skeena Sawmill Division) v. United Steelworkers of America, Local I-1937, B.C.C.A.
52. MacRae v Interferon
53. West Fraser Mills Ltd. (Skeena Sawmill Division) v. United Steelworkers of America, Local I-1937
54. in its December 2008 decision of Hayes v Yukon College 67 CHRR D/408 (Evans, Tkachuk and Riseborough
55. Pharma Plus Drugmarts Ltd.v United Food & Commercial Workers Canada,Local175 (William Marcotte) released in June of 2013
56. 1982 award of Re DeHaviland Aircraft and UAW local 112 [1982] OLAA No. 123, 9 LAC (3d) 271 (Rayner) which was later referenced in another cited case of Re Harris Rebar and BSIOW local 734 [1988] OLAA No.107, 35 LAC (3d) 348 (Dunn)