The Court of Appeal has upheld two lower court decisions allowing for reinstatement under the Ontario Human Rights Code. The reinstatement issue has received increased focus in the legal system as a result of the Divisional Court’s recent ruling in Fair v Hamilton-Wentworth. This decision upheld the OHRT (Joachim) by demanding reinstatement and backpay extending eight and a half years into the past.
There has been a significant amount of discussion regarding reinstatement within this context – that is to say, as a remedy that is typically regarded as “rarely requested and rarely ordered.” The decision by both the Tribunal and Divisional Court addressed this sentiment directly:
It is certainly the case, as the Board points out, that reinstatement is an uncommon remedy in human rights litigation. It is not, however, unusual in labour relations litigation under the provisions of a collective agreement where one might be dealing with exactly the same issues.
 The Code provides the Tribunal with broad remedial authority to do what is necessary to ensure compliance with the Code . It is fair to say that while reinstatement is unusual, there is no barrier or obstacle to this remedy in law.
It would in fact be accurate to consider reinstatement as an overlooked or forgotten remedy of the Human Rights Tribunal, one which was all but absent in execution for many, man years. This is ironic, considering that in the earliest time of the Code’s interpretation (the era extending between 1975 and 1999), leading legal thought defined reinstatement as the default.
In 1984, a Board of Inquiry very first decision (Cumming) under the 1981 Human Rights Code. This was Cameron v Nel-Gor Castle Nursing Home 1984 CHRR D/2170, brought on by an individual who struggled with a medical handicap. This person was denied employment in the role of a nursing aide. When the Board found this did in fact constitute a breach of the Code, the Board pondered an appropriate memory and spoke to the fact that the complainant had never requested they order an offer of employment. She had actually already secured employment elsewhere. Regardless, the Board ordered exactly that, finding that this relief should be “the primary remedy to a Complainant who has been denied her right to equal treatment with respect to employment because of handicap.”
The Board of Inquiry similarly found in favour of the complainant in Ontario Human Rights Commission and Karumanchiri et al v Liquor Control Board of Ontario 8 CHRR D/4076 (Baum) back in March 1987. They ordered he be instated to a higher level position. In this instance, the employer had invited two employees by the name of Parker and Karumanchiri to apply for an interim Assistant Chief Chemist position. This role was explicitly designated to facilitate a smooth transition to a higher position, wherein the individual would soon fill an impending vacancy for the position of Chief Chemist which was the result of the incumbent’s forthcoming retirement. The company leadership initially announced an open competition for this opportunity, but appointed Parker without executing this process. The Board concluded there was liability and ordered the company instate Karumanchiri as Chief Chemist.
The Board took efforts to point out that this decision could impact the daily work experience. However, the Board effectively insisted that the company commit to moving forward by giving the order of instatement. A judicial review application in the Divisional Court 9 CHRR D/4868 affirmed this conclusion.
The same interpretation of the law is seen in a variety of earlier decisions, such as Segrave v Zeller’s Limited (Lederman),Rajput v Algoma University College, Singh v Security and Investigation Services Limited, the Board of Inquiry in Hall v Borough of Etobicoke Fire Department (Dunlop), the Board of Inquiry in Snyker v The Fort Frances-Rainy River Board of Education (Ratushny), Hartling v City of Timmins (Cumming), Rand and Canadian Union of Industrial Employees v Sealy Eastern Limited, Upholstery Division 3 CHRR D/938 (Cumming), the Board of Inquiry in its November 1984 decision of Mark v Porcupine General Hospital (Cumming) 6 CHRRD/2538.
In Mark v Porcupine General Hospital, Professor Cumming shared:
As I emphasized in Cameron (supra, at D/2196) para 18523) the prime remedy in an ‘employment case’ where a complainant has been denied her rights to equality of treatment, is an order under paragraph 40(1)(a) directing that an offer of employment be made. The remedy provisions should be construed liberally to achieve the purposes and policies of the legislation: Rand, supra at D/956. An overriding objective of the remedies is to achieve restitution:
that is, the eradication of the harmful effects of a respondent’s actions on the complainant, and the placing of a complainant in the same position in which she would have been, had her human rights not been infringed by the respondent. (Cameron, supra at D/2196, para 18523)
In Naraine v Ford, the Ontario Court of Appeal actually made a decision which reversed a reinstatement awarded by the Board. The original 1996 order was given the Board of Inquiry (Constance Backhouse) is still, however, instructive of what needs to be considered by the legal authority in such instances.
The Board determined that arbitral jurisprudence indicated that “so long as the employment relationship appears to be viable, reinstatement orders will issue.” They went on to note that the Code provides remedial powers similar to those held by labour arbitrators.
Adjudicators under the Code obviously have the authority to issue orders of reinstatement, and can have resort to the principles and values articulated in arbitration awards insofar as these conform to the goals and purposes of human rights legislation.
The Board also noted that in the arbitral caselaw, reinstatement orders are the norm even where the parties may have exhibited a long history of interpersonal tension and confrontation.
Further, the Board ordered that the reinstatement process enacted fall under the supervision and control of a formal framework determined by the Board, which would seek to diminish the likelihood of conflict. The commentary quoted here was not considered by the Court of Appeal, which eventually swept the reinstatement order aside for other reasons.
In 1998, McKinnon v Ministry of Correctional Services #3 (Hubbard) went to the Board of Inquiry who found adequate proof of adverse treatment as the result of race. The Board also noted that the complainant’s spouse had been subject to harm as reprisal for seeking redress for adverse treatment to which he was subject and was disputing.
In her dissenting opinion for The Supreme Court of Canada’s decision in McKinney v University of Guelph, she argued with conviction that reinstatement as remedy for cases regarding discrimination based on age is also appropriate. The majority still held against the plaintiff, so there was no opportunity to engage with the issue of remedy. Wilson J. was the only of the five resulting opinions to directly speak to the question of appropriate remedy.
So What Happened?
The fact remains that modern administrative decisions reveal a complete absence of the aforementioned jurisprudence. These cited decisions are not cited or referenced in any capacity, whether it be in opposition to, in support of, in acceptance of, in rejection to, or to distinguish a given point, in any contemporary consideration of reinstatement as a reward.
Therefore, the understanding of reinstatement as the “prime remedy” has, for some mysterious reason, totally dissipated. What was once such a fundamental remedy now seems to have become, to once again employ the harsh phrasing, “rarely requested or ordered.” However, I will illustrate in forthcoming blog posts (or you can read more at length now here) that these word do not sufficiently or totally accurately describe the reality of remedy in Canadian law today.
For a review of reinstatement to inactive employment, please see post on this issue.