Ontario – Reinstatement & Instatement

Human Rights Remedies: Reinstatement & Instatement: Ontario

The analysis which follows will show that reinstatement was considered “the prime remedy” for many years in Ontario. In recent years, the frequency of such orders has, for unknown reasons, become less evident. In the current context, the mantra has been cited to describe this remedy as one which has been “rarely requested or ordered”, 1  a description which is submitted is an unflattering and inaccurate assessment of this relief.

The recent decision of which allowed for such a remedy 2 confirms the right to award this remedy although even in the Court of Appeal it was said to be a “seldom-invoked remedy” and one “rarely used”. 3

There can be doubt that the tribunal is empowered to order reinstatement. 4

It is a remedy which was considered appropriate by Wilson J. in her dissent in age discrimination case. Wilson J. in her dissenting opinion in the Supreme Court of Canada decision of McKinney v University of Guelph voiced a strong view in support of reinstatement as a remedy in an age discrimination case, noting the specific factors of the age of the plaintiffs, the particular prejudice suffered by them and the need to redress the wrong. 5 6

Early Cases

There are a host of early cases awarding reinstatement in the early days of the interpretation of the prior human rights statutes. 7 Indeed, reinstatement was once stated to be the “primary remedy”. 8

The initial order in Naraine v Ford Motor Co. of Canada #5  granted by the Board of Inquiry 9 in December of 1996, is instructive of the issues to be considered by the decision maker in such a circumstance.

The Board noted that arbitral jurisprudence had determined that “so long as the employment relationship appears to be viable, reinstatement orders will issue” and further observed that the remedial powers found in the Code were similar to those given to labour arbitrators. In ordering reinstatement, the Board saw this remedy as the means by which the remedy of restitution may be attained:

It is also open to a board of inquiry to issue guidelines to accompany an order of reinstatement that will assist the parties in effecting a successful reconciliation. This appears to be precisely the sort of case which would benefit from this flexibility of approach. The evidence in this case suggests that an order for reinstatement may not result in a seamless re-entry into the automotive plant for Mr. Naraine. To attempt to maximize the prospects for success, movement is required from both sides to this dispute. 10

The modern administrative decisions are bereft of any acknowledgement of the jurisprudence set out above. The cited decisions have not been referenced, either in support of, opposed to, accepted, rejected or distinguished in the recent analyses pondering the award of reinstatement.

Modern Jurisprudence

The words of then Professor Cummings 11 which described as the order of reinstatement as the “prime remedy” have somehow, for unknown reasons, fallen to wayside. That which was first set out so fundamentally as the default remedy, admittedly strong words, has been recently characterized as “rarely requested or ordered”, words which, it is submitted, are not fairly descriptive of the remedy, even in the current context.

Although this remedy has certainly been not been considered recently as the “primary” remedy, it has nonetheless be granted on numerous occasions since 2000.

In an unusual decision, a limited instatement order to a position of a more junior responsibility was made to counter the apparent damage the applicant had suffered to his reputation. In this instance it had been found that the termination of employment had not been caused by a code violation. 12 It was determined that the ability of the complainant to find alternate employment in his vocation had been adversely effected by his treatment while employed by the respondent.

Reinstatement has been found to be the correct method of restoring the status quo by the Court of Appeal 13and in many other cases, 14  reflecting the principles as set by the Court of Appeal.

It is a firm precept of human rights legislation that the objective of the remedy is “to put the applicant in the position that he or she would have been in had the discrimination not taken place.15 16

There may be qualifiers to the reinstatement remedy, such as “where viable”, 17 or that even where so possible, reinstatement is “sometimes” 18 the only remedy which may allow for the establishment of this “make whole” principle.

Qualifiers

In arbitral cases, reinstatement is generally considered the default remedy to counter a termination unless there are legitimate concerns that “the employment relationship is no longer viable”.19

The size of the company’s workforce has, one occasion, been ignored 20 and on occasions referenced as an issue in favour of reinstatement when the company was “large and sophisticated”, 21 and in one case the brief employment history was seen as uninfluential.

A contrary view has been expressed, suggesting that reinstatement should be confined to an environment of a large unionized employer, 22 or that the worker was unskilled, 23 or that such a remedy is not appropriate in human rights cases where liability is based on an influential factor as opposed to the sole factor. 24

It is difficult to imagine a remedy which is shaped by the reasoning by which liability was determined, apart from a concept which parallels contributory negligence.

This being stated, it is noted that similar reasoning was used, coupled with other reasons, in denying reinstatement. 25

The argument against reinstatement would be more logically supported if the extraneous factors may have been proven to have militated against a continuation of the employment relationship. For example, if the complainant was terminated due to a physical disability, yet also exhibited legitimate performance issues, then it is conceivable a submission could be made that the application of the but-for test would have concluded that the relationship was otherwise doomed to fail, as opposed to the theory that if the Code was but a proximate cause and that, therefore, the remedy should not follow as a determined rule.

Notwithstanding all of the above, the decision of Fair v Hamilton-Wentworth District School Board, (Joachim), released on March 14, 2013 ordered reinstatement. 26 The Tribunal had found that the employer had treated the applicant unfairly due to a disability by failing to accommodate her disability-related needs from April 2003 and then by terminating her employment on July 9, 2004.

The Tribunal also made reference to the remedy of reinstatement in an arbitral context to the effect that reinstatement is the default remedy in this context.

It was also noted that there was no personal animosity between the parties and that the employer was a large entity with a sophisticated management structure. All factors considered, there was no prejudice caused by the reinstatement request.

The argument advanced by the employer that reinstatement would be unfair due to the passing of 8.5 years from termination to the date of the remedy was not successful. The delay was determined not to be due to any failing of the applicant.

There may be some issue taken to the human rights tribunal relying upon arbitral authority as a means to support the reinstatement order. There is nothing noteworthy, however, about this as many fundamental concepts in human rights principles have found their origin in arbitral decisions. This includes the need to establish but a prima facie case and the concept of liability be shown by an influential cause, not the sole cause. Similarly the process of evidence by reasonable inference found its initial reasoning from arbitral jurisprudence.

One might expect that the employer would raise a submission that the employment relationship may be one which is difficult to resurrect as a consequence of a hearing involving evidence and issues which are likely to be emotionally charged and arguably destructive of inherent good will required for a continued life between the parties.

The views of the Federal Court, discussed below, may be an apt rebuttal for such an argument. It was concluded in that instance that such a submission must be tempered by the fact that it was the wrongful conduct of the employer which led to the need for the litigation. 27

Issue of Impact on Third Parties

Many of the early decisions deal with the issue of the impact of a reinstatement order upon innocent third parties.

In a unionized work environment, there will exist rights of the party effected pursuant to the terms of the collective agreement and hence the impact of such an order upon such a person will be cushioned by the protective terms of the agreement.

Professor Cumming made note of such provisions in Rand v Sealy referenced above, when he ordered that the complainant be reinstated. A similar reference was made by the same decision maker in Singh v Security and Investigation noting that no present employee would be adversely effected by the order that an offer of employment be extended.

The impact of the reinstatement remedy on innocent third parties has also been viewed as a critical factor in declining reinstatement. 28

There is no further guidance on the requirement to give notice in such instance in human rights administrative process, apart from the Divisional Court decision which clearly advocates such a concept. It would appear to be a prudent strategy to do so.

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Footnotes

  1. Krieger v Toronto Police
  2. Fair v Hamilton-Wentworth District School Board, (Joachim). This was a disability case. 
  3. upheld by Divisional Court and Court of Appeal.
  4. The Ontario Court of Appeal in Ontario Human Rights Commission v Naraine, (leave to appeal to SCC refused [2002] SCCA No. 69) The reinstatement order below was set aside but not for a jurisdictional reason.
  5. The majority held against the plaintiffs in the action and hence did not address the issue of remedy.

  6. Nilsson v University of Prince Edward Island agreed with the words of Wilson J. and ordered reinstatement in age discrimination case.

  7. Segrave v Zeller’s Limited (Lederman);  Rajput v Algoma University College (Tarnopolsky); The Board of Inquiry (Cumming) followed in the 1977 decision of Singh v Security and Investigation Services Limited; Snyker v The Fort Frances Rainy River Board of Education (Ratushny); Hall v Borough of Etobicoke Fire Department (Dunlop); Hartling v City of Timmins (Cumming); Rand and Canadian Union of Industrial Employees v Sealy Eastern Limited, Upholstery Division (Cumming); Olarte et al v Commodore Business Machines Ltd. (Cumming) 4 CHRR D/1705, in which the reinstatement order was refused; the case was upheld in Divisional Court but this issue was not raised; Cameron v Nel-Gor Castle Nursing Home ; Mark v Porcupine General Hospital (Cumming) 6 CHRRD/2538; Barnard v Canadian Corps of Commissionaires (Friedland). This case went to Divisional Court but not on this issue; Ontario Human Rights Commission and Karumanchiri et al v Liquor Control Board of Ontario (Baum); affirmed in Divisional Court; Wiens v Inco Metals (Cumming); Morgoch v City of Ottawa; McKinnon v Ministry of Correctional Services #3
  8. Cameron v Nel-Gor Castle Nursing Home 1984 5 CHRR D/2170.
  9. Reversed by the Court of Appeal on other grounds.
  10. On this subject, the Board noted the decision of the Federal Court, discussed below, in Pitawanakwatin which the Federal Court overturned the Tribunal decision which saw reinstatement as “a recipe for disaster”.
  11. Now Mr. Justice Cummings of the Ontario Superior Court
  12. Moffatt v Kinark Child and Family Services (Laird)
  13.   Piazza v. Airport Taxi Cab (Malton)  Assn.,
  14. Dhamrait v JVI Canada (Flaherty); The Board of Inquiry in Kearsley v St. Catharines (O’Leary); Krieger v Toronto Police Services (Overend); Tearne v City of Windsor (Sengupta)
  15. See Impact Interiors Inc. v. Ontario (Human Rights Commission) (1998) (Ont. C.A.)

  16. A case of the same genre, albeit not purely an employment reinstatement decision, is the May 2103 remedy segment of Chaudhry v Choice Taxi (Reaume). The applicant was a cab driver who had requested dispatch services from the respondent and with it the right to become a shareholder. The Tribunal ordered that the company provide the applicant with the first available opportunity to become a shareholder.

  17.   Krieger v Toronto Police
  18. Krieger v Toronto Police
  19.   Alberta Union of Public Employees v. Lethbridge Community College, at para. 56.
  20.   Dhamrait v JVI Canada (Flaherty), a small company;
  21. In Krieger, it was noted that the respondent was a large and sophisticated employer; It was also unionized which was not specifically addressed as a factor, although it was stated that he applicant has the support of the Association as a reason for finding that reinstatement was viable; Fair v Hamilton-Wentworth District School Board noted the size of the employer;
  22. Suggesting a distinction was found in Krieger in  Macan v Strongco (Renton);
  23. again suggesting a distinction of Dhamrait, as put forward also in Macan v Strongco (Renton);
  24. Once again in Macan v Strongco (Renton)
  25. in a decision of the British Columbia Human Rights Tribunal in J.J. v Coquitlam School Board (Beharrell); Nova Scotia Board of Inquiry in McLennan v MacTara. This was not the sole reason given to deny the remedy
  26. upheld by Divisional Court, and in turn by the Court of Appeal in May of 2016
  27.  Pitawanakwat
  28. Rajput v Algoma (Tarnopolsky); Olarte v Commodore (Cumming); Board in The decision of Baum in Karumanchiri, Divisional Court rejected the argument as the incumbent Parker clearly had notice of the remedy being sought; 1967 Court of Appeal decision of Re Bradley v Ottawa Professional Fire Fighters Association;