Overview

Common law courts traditionally will not award reinstatement as a remedy, although there can be rare exceptions.

To obtain reinstatement, there typically must be found a remedy in a specific statute which allows for this remedy. Very often the individual will be able to enforce such relief through an administrative process, not the usual civil claim. This process will vary from statute to statute. Many such laws have a reverse onus provision which requires the employer to show the claim is without merit.

Reinstatement under human rights statutes is reviewed here.

In Ontario, it is possible to sue for a human rights remedy in a civil proceeding to seek reinstatement as a remedy. This issue has yet to be argued.

Ontario

The Employment Standards Act

This statute allows for reinstatement where the employer has refused to allow an employee to return to work following a statutorily entitled leave, such as pregnancy, parental, family medical emergency, organ donor, reservist, or bereavement leave. ¹ It also allows a person who has been terminated due to a refusal to submit to a lie detector test.  A retail worker who has been terminated due to a refusal to work on a Sunday or public holiday also has this statutory remedy.

A person who has been reprised due to their use or threatened use of the statutory remedies has the same right to request that they be reinstated. ² In a reprisal complaint, the onus of proof is placed upon the employer to prove its innocence. ³

As is the case with all reinstatement arguments, the remedy is a powerful one as it allows for lost income to the date of hearing plus reinstatement. Many adjudicators have allowed for an extra payment of one month for each year worked in the example of a pregnancy leave, where reinstatement was not ordered.

This Act provides similar relief to any employee who has been adversely treated by a temporary help agency, including reinstatement for conduct which is found to be retaliatory to the employee’s enforcement or even an inquiry as to his rights.

Each jurisdiction in Canada has similar legislated protections for employees who have taken such leave programs.

Environmental Protection Act

The above legislation, similar to many whistleblower protective statutes, is designed to protect workers who have been terminated or unfairly treated due to their willingness to co-operate with the required legislative protections in an assortment of statutes, all of the same public interest genre. These statutes are referenced in the EPA and are as follows: ⁴ The statute forbids the employer from dismissing, disciplining, penalizing, coercing or attempting to do so, an employee who has complied with or “may comply” with the named statutes, such being:

1. The Environmental Assessment Act;
2. The Environmental Protection Act;
3. The Fisheries Act (Canada);
4. The Nutrient Management Act, 2002;
5. The Ontario Water Resources Act;
6. The Pesticides Act;
7. The Safe Drinking Water Act, 2002;
8. The Toxics Reduction Act, 2009.

The complaint filed by the aggrieved party goes to the Ontario Labour Relations Board. Most importantly, in this process the evidentiary burden of proof of fair conduct is on the employer, or more succinctly put, the burden of disproving unfair conduct rests on the employer.

Environmental Bill of Rights

This statute is quite similar to the above legislation. It similarly gives the right of reinstatement to a person who has been adversely treated due to the use of the legislation and also has the same reverse onus on the employer so accused.

Employment Protection for Foreign Nationals Act (Live-in Care Givers and Others)

A similar reprisal section exists in this legislation allowing for reinstatement of a qualified worker who has been terminated due to his request to enforce the legislation. This Act incorporates the enforcement procedures of the Employment Standards Act.

Labour Relations Act

This statute also allows for the potential of reinstatement not only to unionized workers but to any person who has been terminated for reasons contrary to the Act. This applies to employers and to trade unions. Management staff, for example, who may have refused to perform the work of striking or locked out workers cannot be terminated or otherwise disciplined. ⁵ The reverse onus also applies.

Agricultural Employees Protection Act

This legislation similarly allows for the reinstatement of any worker terminated due to the exercise of the rights afforded by the statute. There is no reverse onus.

Occupational Health and Safety Act

A similar reinstatement process is available under this statute to redress a reprisal effected against an employee for reporting or complying with the objectives of the statute. ⁶ This Act incorporates by reference to the remedial sections of the Labour Relations Act. ⁷  The reverse onus does apply.

Public Inquiries Act

This Act also allows a remedy where a person has been adversely treated due to the expectation the employee may testify in a public inquiry, provide information to the same process or has participated in the inquiry. There is also a reverse onus.

Fixing Long-Term Care Act

This statute provides the same remedy to any employees in retaliation to co-operation in compliance with the legislation. The same reference is made to the Labour Relations Act. The reverse onus again applies.

Retirement Homes Act

This legislation provides the same remedy of reinstatement due to conduct which is considered to be reprisal to the same genus of conduct. Again the reverse onus applies.

Workplace Safety and Insurance Act

This Act does refer to the obligation of the employer to re-hire an injured worker, although the company’s default in so doing will not result in a reinstatement order, but rather a required payment in the form of a penalty to the Board and a payment to the worker.

An injured worker who has been employed for 12 months as of the date of the workplace accident, and once medically able to return to the same duties, must be offered re-employment. ⁸

Where the worker can not perform the essential duties of the position as of the date of the accident, he must be offered the first opportunity of available alternate employment. The employer has an obligation to accommodate, unless there is undue hardship.

This obligation is time limited to the earliest of (1) two years from the date of the accident (2) one year from the date the person is able to perform the essential duties of the job or (3) the date on which the employee declines an offer of comparable employment or (4) age 65.

An employer who rehires an injured worker and then terminates within 6 months of such date, is presumed to have done so to violate the Act. This is a rebuttable presumption. The employee must file a complaint in that event within 3 months from the date of termination.

The remedy in case of a default of the above obligations is not however reinstatement. The employer, in such instance, is obliged to pay a sum not exceeding the average annual earnings of the employee  to the Board and a sum up to that amount to the employee.

Public Service of Ontario Act

This legislation gives the limited right of reinstatement to a public servant who has been elected to the House of Commons or a provincial legislative assembly and in certain occasions to municipal office the right where the request for re-employment is made within 5 years from resigning in the case of the first two situations and within 4 years in the case of municipal office. The application must be made within 12 months of the date of ceasing to hold public office.

The Act also allows for reinstatement to a civil servant who has been dismissed due to his political activity or the refusal on his part to engage in political activity.

The complaint is made to either the Public Service Grievance Board or the Labour Relations Board, dependent upon the classification of employment.

Federal Legislation

Canada Labour Code

Section 240 of the federal code allows for a remedy known as “unjust dismissal” complaint which can lead to reinstatement and other relief. It is available only if (1) there has been 12 months of consecutive employment and (2) the applicant is a not a manager and (3) there has not been a genuine discontinuance of the job function in question or lack of work and (4) there is no union protection and (5) there is no relief under any other statute. This is reviewed in detail here.

The case law has tended to define manager quite broadly in favour of the applicant. The test is one of autonomy and management power.

The Supreme Court of Canada in its 2016 decision affirmed that this remedy means that the employer must have just cause for termination. A federally regulated employer may not effect a not-for-cause termination without engaging this remedy. ⁹

The reinstatement remedy under the Code has not been interpreted to be the reflexive remedy as in arbitral jurisprudence but is more so in the discretion of the adjudicator.

It is nonetheless a powerful remedy as the claim is not typically limited to a notional notice period as is the case with a wrongful dismissal remedy.

The limitation period for filing the complaint is very short - 90 days.

 Statutory Leave

The federal code also allows for reinstatement for an employee who has taken pregnancy leave, maternity leave, parental leave and compassionate care leave by section 209.1

Reserve Force

Members of the Reserve Force have similar protection by section 247.96. It is also not permitted by law to refuse employment to a person because he is a member of the Reserve Force.

Health and Safety

The Canada Code provides similar protection to prevent and remedy reprisals against employees who have participated in health and safety violations by section 147. There are also serious criminal sanctions imposed by section 148.

Public Servants Disclosure Protection Act

This legislation, as its name suggests, provides protection to public servants who have been adversely treated due to a good faith disclosure of wrong doing. The remedy includes reinstatement and is effected by a complaint to the Public Servants Disclosure Protection Tribunal. There is a short time period given to initiate the complaint of 60 days.

Public Service Employment Act

The above act gives priority to an employee on a leave of absence, in certain circumstance, to available positions for the period of the leave plus one year. (section 41.1) Similar protection is afforded to a member of the Reserve Force.

National Defence Act

Reinstatement to active service is allowed by this legislation where an officer or non-commissioned member has been subsequently acquitted of any wrongdoing following his initial release for such unwarranted allegation.

Royal Canadian Mounted Police

This gives similar protection of a member of the RCMP found to be innocent of the allegations made against him.

Marine Personnel Regulations

Workers on Canadian marine vessels are given the same protection as to health and safety violations by the incorporation of the rights and privileges conferred by the Canada Labour Code, including reinstatement for reprisal. The regulation is found here.

Alberta

Alberta has a similar provision to that of Ontario allowing a complaint under its Occupational Health and Safety Act, known as a Discriminatory Action Complaint. In a recent case, this action was taken by an employee who had reported being bullied and harassed by a co-manager. She had previously reported a health and safety concern. ¹⁰

Her complaint failed. The OHS officer set out this test:

1. That the complainant engaged in a protected activity under the Act;
2. That the complainant was subjected to disciplinary action; and
3. That there was a causal connection between the protected activity and the disciplinary action.

The first two steps were proven. Under the Alberta law, in this situation, the onus of proof shifts to the employer to show that the termination, as in this case, was for a reason other than the protected conduct. It was found that the company met this obligation. The resultant appeal to the ALRB also failed.

Failure of a Public Body to Provide a Hearing Required by Statute or Inferred

Case Law Prior to Dunsmuir

Care must be taken to review the case law pre Dunsmuir, as the latter case dramatically altered the remedy available.

Under the principles of public law, where a publicly established body had a mandate imposed upon it to provide a hearing to address the rights of an effected employee, the failure to do so or the failure to provide a fair hearing could result in a court order setting aside the dismissal and allowing hence for reinstatement of the employee in question.

This was the principle applied in  In Reference re Constitutional Questions Act (Ontario), [1957] O.R. 28, 7 D.L.R. (2d) 222, in which the Court of Appeal concluded a police chief was entitled to a hearing. The same conclusion followed in Brown vs. Waterloo Regional Board of Commissioners of Police  (1982), 37 O.R. (2d) 277, 136 D.L.R. (3d) 49 (H.C.J.).

In McCaw vs. United Church of Canada, a decision of the Ontario Court of Appeal, the plaintiff was awarded an order setting aside the termination decision on the same basis. The employer had failed to provide a proper hearing as required by the rules of the Church, which in this instance was a body incorporated by Act of Parliament, hence providing an argument of a public body to which a hearing was mandated. McCaw was ordered, in effect, reinstated with ten years back pay.

Typically provincial legislation creating municipalities allowed for a hearing process for certain specified employees or alternately, the legislation was read to imply a hearing obligation. The failure to provide a hearing or alternately a proper hearing, often led to a judicial review application to set aside the dismissal. A more effective remedy may have been to sue for declaratory review with an accompanying damage claim. The 1992 decision of the New Brunswick Court of Appeal in Gerrard and the Town of Sackville is a good example of a successful judicial review application.

The Ontario Municipal Act has since been revised to remove the hearing obligation which was once specified in the statute.

The leading case on this subject, prior to Dunsmuir, was the Supreme Court of Canada decision in Knight v. Indian Head School Divn No. 19 1990 1 SCR 653. The Court summarized the test of a public body to provide a fair hearing process and the relevant criteria for the duty to be established. The Court then looked to see if the applicant was more than a mere employee and sought to determine if he is more akin to an officer.

The decision of the British Columbia Supreme Court in Reglin v. Town of Creston provided a good review of the then relevant case law. In the Reglin decision, Mr. Justice Melnick did not provide reinstatement as the remedy due to the delay in commencing the judicial review application, the fact that the Town had hired a replacement and also that the plaintiff had himself secured a new 5 year term of employment.

Dunsmuir v New Brunswick

The Supreme Court rejected the principles of Knight as set out above and determined the remedy to set aside a termination decision ignored the fundamental employment contractual issues in play between the terminated employee and the public body employer. The Court concluded that employee should have the same remedy as available to those in the private sector. ¹¹

The Court did say that the remedy to insist on fairness in the termination process by a proper hearing would still apply in limited circumstances. These were stated to be applicable to a person such as a judge, a minister of the Crown or others holding a constitutionally defined state role.

Also a person holding a position “at pleasure” or subject to the will of the Crown will be entitled to procedural fairness.

In addition it stated a statute may be interpreted to require a fair hearing process in the example given of an older English case involving a teacher whose employment could be terminated by statute on 3 weeks notice.

Accordingly the pre Dunsmuir case law must be read very carefully to determine its applicability. It will be now be the exceptional case to allow for the “reinstatement" remedy. As the Court noted in Dunsmuir, the reinstatement term may be a misnomer, as the remedy is to obtain an order quashing or setting aside the termination. The effect may look like reinstatement, but there is a distinction, as once set aside, there is nothing to prevent the employer from then proceeding to implement the hearing process which has previously been defective.