Introduction

This section reviews the types of claims which may be made by the employee, given a disability issue in the workplace.

There are a two remedies available to an employee in Canada who has been treated adversely due to a medical disability. These are as follows:

1. File a complaint under the relevant human rights statute; or
2. Sue civilly using traditional contractual or tort remedies.

Ontario’s legislation is unique in allowing for a civil claim to be pursued by which human rights remedies are sought.

The law on the subject of frustration is reviewed in the modern context but also how it co-ordinates with human rights issues such as accommodation. Early case law makes no reference to this issue. Today it is most important to appreciate the harmony between the common law issue and the human rights considerations, which is reviewed in depth.

Consideration is also given to the context in which the employer causes the disability.

The remedy of reinstatement as human rights relief is also discussed. This remedy is generally regarded as a discretionary one in most jurisdictions. The factors influencing the granting of this remedy are clearly important, given the dramatic repercussions of the award, which is often accompanied by a lost income award to the date of hearing.

The question of reinstatement to inactive employment is also reviewed. The law is evolving on this subject. It can be an important remedy to a disabled employee for many reasons. It is a form of relief often ignored. It should not be.

Also reviewed are the compensatory damage awards made in the human rights context for adverse treatment due to a disability.

The duty to accommodate a medical disability is an important cornerstone of human rights law. One case allowed an employee 12 years back pay due to the failure of the employer to accommodate the medical issue.

A case in B.C. allowed a claim due to a mental disability, which set a new high water mark of damages for emotional harm of $75,000 ¹ based on a mental disability. The award was set aside on a judicial review application as “patently unreasonable” on first review ², yet later restored by the Court of Appeal.³ The latter noted that the tribunal should not be bound by what had been considered as a historic “range” of  damage awards and that is was not “patently unreasonable” for the tribunal to award a sum in excess of the prior maximum, given proper consideration of the evidence before it.

An income loss of $385,000 was also given.

A similar human rights case allowed a claim against a ski resort brought by a long term ski patroller based on a perceived disability. She was allowed a damage claim of $25,000 and a lost income claim of $54,472. The application for judicial review failed in 2020. ⁴

These issues are explored in detail in Workplace Human Rights and Exceptional Damage Awards.