Many statutes allow for the remedy of reinstatement, given a violation of the relevant legislation. This includes employment standards legislation, occupational health and safety laws and a variety of other statute, which are reviewed below. Often these remedies allow for the application of the reverse evidentiary onus, discussed momentarily. The most popular of this type of relief is the reprisal section of the employment standards and the occupational health and safety legislation.

The remedy generally allows for compensation for lost income to the date of the hearing, mitigation expenses and mental distress damages. There is also possible a claim for reinstatement or compensation in lieu of reinstatement. The cases in Ontario have applied a formula for such future income loss of one month per year of service. This is not a hard and fast rule but it does reflect the general approach. There are no Court of Appeal or Divisional Court decisions reviewing this formulaic assessment of a future loss. Civil and human rights cases do not use this method of assessing such a claim.

Interpretation of Protective Statutes

Ontario's ESA is a good example of such protective legislation. In its determination, the Board must be guided by the purpose of the ESA, namely, the protection of employees.  The Board is therefore required to interpret the ESA “in a broad and generous manner, favouring interpretations that extend the statute’s protections to as many employees as possible over those that do not. Exclusions must be interpreted narrowly. ¹

Influential

In considering the liability issue allowed by such statutes, administrative tribunals have accepted the principles of human rights cases, namely, that it is not necessary to prove the adverse action was taken as the sole motivator for the decision, rather only that this was an influence upon the offensive action. ² This was the decision of the Board in its 2016 decision dealing with reprisal under the ESA: ³

The employer bears the burden of proof that section 74 has not been violated. If the Board finds that an employee’s termination is motivated - even in part - by the assertion of a right under the Act, the employer will be held to have violated section 74. In this case, as in many others, the employer advanced a justification at the hearing for its decision to terminate Thapa’s employment after he sought to enforce his rights. The Board has commented on the need to scrutinize such after the fact justification carefully, and has held that even where there exists some legitimate justification for a decision to terminate an employee, the termination will be prohibited if the employer’s decision was tainted by improper motive: Sense Appeal Brands Inc., 2015 CanLII 26120 and San Romanoway 2015 CanLII 30169.

Reprisal & Reverse Onus

The reprisal sections of the Ontario ESA and the OHSA are good examples of a reverse onus.

Applicant must show they were acting in compliance with the Act or sought enforcement of it and suffered adverse consequences as, for example, in s. 50(1) OHSA. The presumption section is not a presumption of guilt but an evidentiary onus. The employer must then show what motivated its action. If the employer's conduct was motivated in any way by the employee’s exercise of their rights, a violation will be found even where there are shown other perfectly valid reasons for its actions. ⁴

Similar to human rights jurisprudence, it is not required to show success in the underlying complaint for the reprisal remedy. ⁵

Make Whole

The purpose of the remedy, as is the case also in human rights jurisprudence, is intended to make the employee whole. The issue then becomes one of determining, "but for the violation", what are the losses suffered? Apart from lost wages to the date of hearing, the Board has developed a practice, where reinstatement is not sought or ordered, of compensating future expected income based on a payment of one month's compensation for each year of employment.

Reinstatement is considered the presumptive remedy, ⁶ and also with back pay.⁷

There may be variations of this award, such as where the employer's business has closed and hence there could be no expectation of future employment. ⁸

As is the case again in human rights claims, the claim for lost wages to the date of hearing is not automatic. The employer may point to events or performance issues which revealed that the continuity of employment was at risk and hence the claim for lost wages may fail. As noted in a 2022 decision: ⁹

As the Board stated in L & L McCaw, supra, an employee’s misconduct may influence whether or not reinstatement would have been a viable remedy and this determination affects what remedies may be available to the applicant. Furthermore, wage loss to the date of the Board’s decision is not automatic. As the Board’s cases demonstrate, the circumstances may reveal that ordering damages to the date of the Board’s decision may not be appropriate in some instances (See Holcim and L & L McCaw, supra).

 I agree with the Employer that the evidence revealed that it is highly unlikely that, but for the Employer’s breach of the Act, Ms. Paterson would have remained employed with the Employer. As mentioned in the March 8, 2021 decision, there were legitimate and serious concerns regarding Ms. Paterson’s performance during her probationary period. Her medication errors and demonstrations of poor judgment created the potential for danger to the inmates, to herself and also to her co-workers, such as the guards who would have had to intervene in the event that her decision to, for example, hug an inmate had gone wrong.

In a 2012 decision, the employee was awarded a lost income award from April 1, 2006 to December 1, 2008, a period of two years and eight months in the sum of roughly $70,000. Further sums was granted for the loss of the job opportunity or "alternatively as severance pay" of $10,000. ¹⁰ Liability had been found based on the reprisal section, s. 74(2) of the ESA.

Damages for Mental Distress

The remedy does allow for such an order, subject to the same rule in civil cases that the degree of suffering must exceed the normal stress endured in any termination. The damages awarded tend to be modest in the range of $1,000 to $3,500. There have been cases awarding as much as $5,000 and $7,500. The violation of such a statute may be argued as unfair conduct at the time of termination leading to an aggravated award in a civil court which tends to award higher sums for such a loss. The chart below summarizes these cases in the administrative process.

Principles of the Remedy

The issue of the principles of fashioning a remedy under such a statutory provision was considered in a decision dealing with a reprisal remedy under the Employment Standards Act in July of 2019.  ¹¹ The employee had been adversely treated as a consequence of his absence to visit his ailing mother overseas.

The Board found that there had been an act of reprisal and then turned to remedy. These remedy rules were then fashioned, including one which made reinstatement the presumptive remedy and also allowed the possible award of future lost income where reinstatement is not sought due to the conduct of the employer:

1. Remedies for reprisals taken by an Employer under the ESA are extremely important and must be applied with sensitivity and understanding to ensure they further the purposes of the Act, protecting employees from reprisal, and making them whole.

2.In cases of reprisal under the ESA, reinstatement is the presumptive remedy. It is the only remedy which makes employees whole. Although the Board must consider the specific circumstances of each case, the proper starting point is that an employee who has been terminated by an unlawful reprisal will be reinstated barring exceptional circumstances.

3. An employee who is reinstated following a termination is generally entitled to damages for lost wages and earnings from the date of termination, or from the first availability to work if returning from a leave, to the date of the return to work. This is subject to the individual circumstances of each case, and to the employee’s responsibility to mitigate his or her damages.

4. If the employee does not wish reinstatement because of the Employer having engaged in a reprisal and the poisoned work environment that creates for the employee, or if the Board declines to reinstate, the compensation for lost wages and earnings should, in principle, be the same as for the employee seeking or obtaining reinstatement.  The compensation should normally run to the date of the Board’s decision, or to some notional return to work date.

5. An employee who does not wish reinstatement because of the employer’s unlawful conduct and the resulting poisoned work environment, does not thereby fail to mitigate their damages if there is no offer of reinstatement from the Employer. Such an employee should not be penalized or forfeit the compensation that would ordinarily apply to a reinstated employee. However, an employee who refuses an offer of reinstatement from the employer may fail in their duty to mitigate their damages depending on the circumstances.

6. If the employee does not wish reinstatement, or the Board does not order reinstatement, for reasons unrelated to the Employer’s unlawful  conduct and the resulting work environment, such as, for example, the employee found alternate employment and does not wish to return to their job, or the employee is disabled and can’t return to work, or the business has closed in the interim, or the employee does not wish to work in that industry any longer, the damages for wage and earnings loss run to the appropriate date prior to the Board’s decision depending on the particular circumstances. It may be the date of the last hearing or some other date related to the particular circumstance, for example, the day the employee became disabled or the date of the closure or the date the employee commenced work in another job.

7. Care should be taken to understand clearly what an employee is saying when they decline to seek reinstatement. They may be expressing a clear intent because they have another job they have no intention of leaving, or they may be unable to work at all in the job because of illness or disability or similar reasons unrelated to the employer’s conduct. Or, they may be reflecting a fear that the workplace has been poisoned by the employer’s unlawful conduct.

8. If the employee’s reasons relate to the circumstances in the workplace created by the employer’s unlawful conduct, care should be taken to ensure the employee understands that s/he is not required to make an immediate decision on reinstatement just because they are asked by the Board or an ESO. It is understandable if they are uncertain and wish to await the outcome of the case, or to see what occurs in the hearing itself, or to see what other possibilities for alternate employment arise after the conclusion of the hearing, and prior to the issuance of the decision.  Employees should understand that they are not required to make a choice on reinstatement until they have an actual choice to make in the real world, such as an offer of reinstatement from the Employer or a direction for reinstatement.

9. The Board should consider  giving employees who say they do not want reinstatement because of the Employer’s unlawful conduct and the negative work environment, an option to accept reinstatement ordered by the Board  because a Board decision in favour of the employee, and an order to post a Notice to Employees in the workplace, may cause the employee to change his or her mind, particularly if they have not obtained suitable alternate employment in the interim. The option would have to be exercised by the employee advising the Employer within a short period following the issuance of the decision of their decision to accept the reinstatement. In this case, given what I have found on the merits and what I have directed on remedy, including the posting of a Notice to Employees in the workplace as per Schedule A, I have ordered that Mr. Yin should now have an opportunity to review his options on reinstatement.

10. An employee who obtains reinstatement is not entitled to damages for the loss of the job or the lost reasonable expectation for employment, but the non-reinstated employee is. An employee who chooses not to be reinstated, or is not ordered to be reinstated is, depending on the particular circumstances, entitled to damages for the lost opportunity for employment or the loss of the job itself.  Accordingly, if the Board provides the employee with an option to accept reinstatement, the employee would not obtain such damages if they accepted reinstatement but might receive it if they declined. This is the order I have made in this case.

11. An employee who does not seek reinstatement because of the employer’s having engaged in a reprisal and the creation of a poisoned work environment, is not for that reason subject to a lesser amount for loss of the job itself, than the ordinary award of these damages would dictate. The head of damages applies to this class of employees and it undermines the very purpose of the damages to lower them. Employees who do not seek reinstatement for those reasons should not be penalized as it is not a failure to mitigate.

12. The Board’s normative award for the quantum of damages under this head of damages of one month for every year of service is not a rule or a policy and is not the same as damages for wrongful dismissal. The same is true of the normative award which has been applied to short service employees in some cases of 1/3 of a week for every week of service. In these cases the Board is seeking to quantify what the loss of the job on a permanent basis means to this employee.

13. In the case of short service employees, 1/3 of a week for every week of service may yet undervalue the job which has been lost because of the employer’s illegal conduct.  On the other hand, 1/3 of a week for every week of service, applied in some cases of short service, appears to overcompensate employees compared to the measure of one month for every year of service.  For example, an employee with one year of service would be entitled to one month of damages or 4.2 weeks, while a short service employee with 39 weeks of service would get 13 weeks. Instead, I suggest that a fixed amount should be awarded for employees with less than three years of service for the loss of the reasonable expectation of employment, subject to the circumstances of any individual case, with employees with more than three years’ service entitled to greater damages, more or less of one month for every year of service. The amount awarded in this case is three months wages and earnings.

14. If the Board orders reinstatement at the option of the employee, the Board, assuming it is otherwise appropriate, should also award damages for the lost opportunity for employment which would only be effective if the employee did not exercise the option of reinstatement.

15. In the case of a finding that a reprisal occurred, posting of a Notice to Employees, and a copy of the decision, should be commonly ordered whether reinstatement is ordered or not, in order to promote the rule of law in the workplace.

In a subsequent decision, the Board noted that the employee was required to be advised that he must decide whether he wished reinstatement as a remedy within two weeks of the primary decision.

A reconsideration request followed which did not impact the above findings. It did, however, include the remedy available to the applicant, who elected not to be reinstated. ¹² The employee was allowed lost wages from October 2017 to February 2019, $3,000 damages for injury to his dignity and self-respect, and three months’ pay for the lost opportunity of continued employment.

Such damage awards for injury to dignity and self-respect tend to be modest, as noted above. ¹³

This clearly is a powerful remedy.

A chart summarizing cases allowing for such remedies appears here.

Civil Remedy

The employee may also consider, as an alternative, a civil damage claim for aggravated damages where termination has resulted. ¹⁴

The employer had unsuccessfully appealed the trial judge's award of fair notice and aggravated damages. The trial court had awarded $20,000 as aggravated damages due to unfair treatment afforded to the plaintiff following her return from maternity leave. The employer had failed to reinstate the plaintiff to her former position as a office manager of the dental office. The trial judge found that the employer had violated the protections afforded by both the Human Rights Code and the ESA.

As to the ESA protections, the Court of Appeal found such action was a breach of the ESA S. 53(1) and also the reprisal of S. 74(1).

The award, however, made at trial was described as a remedy for breach of the Human Rights Code and did not refer to the ESA in the determination of the damage sum. ¹⁵

The Court of Appeal agreed with the factual finding that the ESA had also been violated but upheld the damage claim based on the failure to adhere to the Human Rights Code:

[26]      The trial judge concluded that the appellant’s unlawful actions amounted to discriminatory treatment of the respondent because of her family status, including, but not limited to, her childcare obligations, contrary to the Code. I agree with the trial judge’s findings. They are amply supported by the evidence at trial.

There is no principled reason why a breach of the ESA would not give rise to a claim for aggravated damages. This decision was made in 2005, well before Honda in 2008 and subsequent case law.