Back in June 2008, the Ontario Human Rights Code was amended to allow Superior Court judges to award Code remedies to an employee who sues for wrongful dismissal but who also claims he/she was subjected to discrimination by the former employer. This new judicial tool sat unused for five (5) years, until Justice Grace handed down his decision in Wilson v. Solis Mexican Foods, 2013 ONSC 5799 on September 12, 2013.
In Wilson, Justice Grace concluded that the employer had terminated Ms. Wilson because of her disability, and ordered the employer to pay Ms. Wilson $20,000.00 in general damages for loss of human dignity in addition to further damages for failure to provide reasonable notice of termination. While the court’s damages award was unique, the facts underlying the decision were not.
Ms. Wilson was terminated without cause on May 19, 2011 after 16.5 months of employment. She was 54 years old. Ms. Wilson was a certified general accountant and worked in positions of “modest responsibility” as an Assistant Controller, and later a Business Analyst. Ms. Wilson’s annual salary was $65,000 plus benefits. In November 2010, Ms. Wilson had a formal assessment of her performance and attendance issues. Aside from a time management issue, she received a grade of satisfactory or better. Shortly thereafter, Ms. Wilson informed her employer that she had a bad back.
In early March 2011, Ms. Wilson stopped coming to work on account of her back. On March 28, 2011, Ms. Wilson’s doctor proposed a graduated return to work. The employer refused, and stated multiple times that it required Ms. Wilson to be “capable of returning to full-time hours and full duties before making the transition back to the workplace”. On April 28, 2011, Ms. Wilson’s doctor wrote a note stating that she would be off work for “medical reasons” until June 15, 2011. There was no other communication between the parties until May 19, 2011, when the employer advised Ms. Wilson for the first time that her position had become redundant due to “restructuring” and that her employment was terminated.
Justice Grace concluded that the employer’s stated reasons for termination were obviously “hollow”. He awarded over $17,000.00 for wrongful dismissal, fixing the notice period at three (3) months despite Ms. Wilson’s short service and modest responsibilities. He then awarded an additional $20,000.00 as general damages after finding “without hesitation” that the decision to terminate Ms. Wilson was based, at least in part, on her disability.
Employers and Human Resources professionals need to pay close attention to the Wilson case. This was the first time a court chose to use its new powers under the Human Rights Codes against an employer, but it won’t be the last. There are five (5) key lessons to learn from Wilson:
1. Temporary illnesses or injuries are “disabilities”
The bar for what qualifies as a “disability” under the Code is quite low. For example, both human rights tribunals and the courts have recognized that discrimination occurs if an employer treats an employee differently because of a “perceived disability”, even if the employee has no actual disability whatsoever. Consistent with this, Wilson affirms that temporary illnesses or injuries are still “disabilities” protected under the Human Rights Code.
2. Employers typically cannot insist on a full recovery before a return to work
If a doctor proposes modified duties to assist an employee in a gradual return to work, the Human Rights Code requires employers to accommodate such modifications unless doing so amounts to undue hardship. The test for undue hardship is very difficult for employers to meet. Since gradual return to work plans are commonplace, in most cases it is unlikely that an employer would be able to prove such a plan causes undue hardship.
3. Disability should play no role in termination decisions
Wilson makes it clear that judges are prepared to accept the principle established by human rights tribunals that discrimination occurs if an employee’s disability plays any role, no matter how small, in the employer’s decision to terminate.
4. Human Rights Code general damages awards are increasing
Justice Grace’s general damages award against the employer was not a simple slap on the wrist. The award of $20,000 represented 33% of Ms. Wilson’s annual salary. That number would likely have been higher if Ms. Wilson had more than 16 months of service and earned a higher income. This high general damages award is consistent with recent awards made by human rights tribunals, who are moving away from historically low general damage awards that were viewed by many as a mere “license fee” for employers to discriminate.
5. Damages for loss of employment, and reinstatement, are both possible remedies
General damages for loss of human dignity is only one possible remedy a court could award against an employer who violates human rights. The amendments to the Human Rights Code arguably give judges access to other remedies available to human rights tribunals. One remedy is damages for loss of employment, which can far outstrip reasonable notice damages. Another powerful remedy is reinstatement. While these remedies have not yet been used by judges, there is little doubt that plaintiff counsel, emboldened by Wilson, will be pushing for these remedies in future cases.