Remedy – Reinstatement

Remedy – Reinstatement

1. Under human rights legislation, the purpose of compensation is defined by the make whole concept.

Ontario Court of Appeal  Piazza v Airport Taxicab,  (1985), 7 C.H.R.R. D/3196 (Ont. Bd. Inq.), var’d 24 O.A.C. 8 (Div. Ct.), rev’d 60 D.L.R. (4th) 759 (C.A.) (referenced in Ontario Human Rights Commission v Impact Interiors

 

2. As the remedy under the Code is restitutional in nature, the length of employment and the “quality” of employment are both irrelevant factors in the determination of the income loss. The Court of Appeal reversed the Divisional Court on this issue.

Ontario Court of Appeal – OHRC v Impact Interiors

3. There is nothing in the wording of the legislation which suggests that such a remedy should be limited to exclude or otherwise limit the granting of a reinstatement order. The Code clearly allows for a remedy as a restitution for “other than through monetary compensation”.

45.2  (1)  On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
3. It is clear that the Tribunal has discretionary power to order reinstatement. The Court of Appeal has considered such power and although it was declined in the cited case based on the particular facts before it, the jurisdiction of the Tribunal to do so was implicit.

Ontario Court of Appeal Ontario Human Rights Commission v Naraine, (leave to appeal to SCC refused [2002] SCCA No. 69)

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.
6. Of the five opinions which resulted in the decision, only that of Wilson J. dealt with the issue of the reinstatement remedy. She stated as follows:

The circumstances in this case strongly suggest that reinstatement is an appropriate and just remedy.  The evidence demonstrates the paucity of academic positions currently available in the universities.  For older academics improperly ousted from their positions the probability of locating comparable work will be slight.  The fact that the appellants are older, coupled with the fact that they have all been granted full tenure, militates against the likelihood of their finding suitable and similar employment.  Additionally, it should be noted that the rights of the appellants which have been infringed pertain to their dignity and sense of self-worth and self-esteem as valued members of the community, values which are at the very centre of the Charter.  It would be insufficient, in my view, to make any order which does not seek to redress the harm which flows from the violations of this interest.  Reinstatement is clearly the most effective way of righting the wrong that has been caused to the appellants.  I would therefore order full reinstatement with all the attendant benefits.

7. Early Ontario cases routinely ordered reinstatement as the appropriate remedy.

The Board of Inquiry Segrave v Zeller’s Limited (Lederman)  September of 1975

The Board of Inquiry (Cumming) 1977 decision of Singh v Security and Investigation Services Limited

The Board of Inquiry August 1979 in Snyker v The Fort Frances-Rainy River Board of Education (Ratushny),

The Board of Inquiry Rand and Canadian Union of Industrial Employees v Sealy Eastern Limited, Upholstery Division 3 CHRR D/938 (Cumming) June of 1982

The Board of Inquiry in Barnard v Canadian Corps of Commissionaires (Friedland),  January of 1985

The Board of Inquiry Ontario Human Rights Commission and Karumanchiri et al v Liquor Control Board of Ontario 8 CHRR D/4076 (Baum) Affirmed by Divisional Court 9 CHRR D/4868

The Board of Inquiry Wiens v Inco Metals (Cumming) 9 CHRR D/4975, February of 1988.

The Board of Inquiry (Hubbard) in Morgoch v City of Ottawa August 1979

 

8. The remedy of reinstatement was then described as “the prime remedy”.

Cameron v Nel-Gor Castle Nursing Home 1984 5 CHRR D/2170

Mark v Porcupine General Hospital (Cumming) 6 CHRRD/2538

 

9. The Tribunal in Naraine v Ford ordered reinstatement, and noted “so long as the employment relationship appears to be viable, reinstatement orders will issue”. The decision was reversed by the Court of Appeal but not on this issue.

(Constance Backhouse) in December of 1996, in Naraine v Ford Motor Co. of Canada #5 28 CHRR D/267

 

10. The Tribunal ordered a limited form of reinstatement in the 2000 decision of Moffatt v Kinark Child and Family Services (Laird). The Tribunal had ordered that the employer offer to the complainant a position which was more junior than that held by him when the complaint was initially filed in November of 1991, which position was to be of a limited time duration.
11. The order requiring the contract to be given was based on the finding that the complainant suffered damage to his reputation due to the adverse treatment. The termination of his employment was found not to have been caused by unfair discriminatory conduct:

I also want to emphasize that the employment contract was ordered to redress the damage to Moffatt’s reputation arising from the discrimination, not to redress the termination of Moffatt’s employment which, on a balance of probabilities, was not found to be caused by the discrimination.

12. The decision of the Ontario Human Rights Tribunal in Dhamrait v JVI Canada (Flaherty) in May of 2010 awarded reinstatement. The company was an assembly and packaging business with nine employees.
13. The size of the labour force and its reduction from 9 to 6 due to the decision to close one of the two assembly lines was noted in the Dhamrait decision although the size of the employer’s work force was not noted as a factor in the reasons.
14. The goal of the shaping the remedy, the Tribunal noted, is to restore that which should have been:

In determining whether reinstatement is an appropriate remedy in the circumstances, I am governed by the principle that remedies under the Code are crafted to place successful applicants in the position they would have been but for the discrimination: Piazza v. Airport Taxi Cab (Malton) Assn., supra.

15. The June 2010 decision of the Ontario Human Rights Tribunal followed in Krieger v Toronto Police Services (Overend) in which reinstatement was again awarded.
16. The Tribunal did observe that awards of reinstatement historically were “rarely requested or ordered”. In Krieger, the Tribunal spoke to this issue:

[182]      While reinstatement orders are rarely requested or ordered in human rights cases, they are “normally” ordered in arbitral cases where a violation of a grievor’s rights has been found, unless there are “concerns that the employment relationship is no longer viable” Alberta Union of Public Employees v. Lethbridge Community College, 2004 SCC 28 (CanLII), [2004] S.C.R. 727, 2004 SCC 28 (CanLII), at para. 56.  The goal of human rights legislation, which is remedial in nature, is to put the applicant in the position that he or she would have been in had the discrimination not taken place.  See Impact Interiors Inc. v. Ontario (Human Rights Commission) (1998), 35 C.H.R.R. D/477 (Ont. C.A.).  Where viable, reinstatement is sometimes the only remedy that can give effect to this principle.

17. The Tribunal pointed to the size of the employer as a large and sophisticated employer, an issue also noted in the discussion of reinstatement as the appropriate remedy in the subsequent decision below.
18. The decision of Fair v Hamilton-Wentworth District School Board, (Joachim), released on March 14, 2013 ordered reinstatement.
19. 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.
20. The Tribunal noted that the remedial objective of human rights legislation is to make the applicant “whole”. It also found that had the employer been properly accommodating the applicant, she would have been returned to full-time employment in June of 2003, in one of the two positions referenced above.
21. Reliance was placed on the passage from the Supreme Court of Canada decision in McKinney, a case involving an analysis of mandatory retirement, as was referenced above. Again, this opinion was from a dissenting view and was the only decision delivered from the five sets of reasons which dealt with remedy:

I adopt the remedial principles of the Supreme Court of Canada in McKinney v. University of Guelph, 1990 CanLII 60 (SCC), [1990] 3 S.C.R. 229 at paragraph 341:

It should be noted that the rights of the appellants which have been infringed pertain to their dignity and sense of self-worth and self-esteem as valued members of the community, values which are at the very centre of the Charter.  It would be insufficient, in my view, to make any order which does not seek to redress the harm which flows from the violations of this interest.  Reinstatement is clearly the most effective way of righting the wrong that has been caused…

22. Reinstatement has been ordered in many provincial and the federal jurisdictions, applying the concept that it is not a default remedy, but is one to be considered in view of the context of the relationship.