Reinstatement under Alberta Human Rights Act

There is no issue that the Act allows reinstatement as a potential remedy. ¹

This being said, orders of reinstatement have been few. The general synthesis of the Tribunal decisions considering the remedy note that the remedy is discretionary and not a default one.

Given that the grievance process is the expected process where the employee is unionized, one would expect that the arbitral setting would promote reinstatement as the expected relief, but the cases on this subject are yet to deal with this context.

In applying the remedy, reinstatement may mean reinstatement to an equivalent position, being one of the same salary, seniority and benefits. It may also allow for reinstatement to the complainant’s last position. ²

This remedy was considered in a 2012 Tribunal decision, in which the decision maker stated, without citing any precedent that: ³

The traditional inclination would be that reinstatement is not a workable solution.

The decision suggests that there is a form of rebuttable presumption against allowing the remedy. In this instance, reinstatement was allowed. The reason propelling this conclusion were:

1. There was no ill will harbored from one party to the other reciprocally;
2. Hence the foundation of mutual trust remained in place;
3. There was an existing opening;
4. Even had the employer shown such ill-will, the employer was a large entity and a placement in another department was possible;
5. The applicant remained unemployed;
6. The Province had stated its objective to promote the employment of older employees.

The complainant was reinstated on a one year contract, at her choice, to her prior position or to a comparable position. After the expiry of the one year period, the Province was allowed to determine the need for her services with age being eliminated as a factor.

The employee had been employed under four successive contracts for the duration of eight years, in total. She had been advised of her termination roughly one year prior to the expiry of the last contract. This presumably related to the terms of the reinstatement order.

The remedy of reinstatement was again considered by the Tribunal in 2019 in Pratt v University of Alberta.

The complainant was a probationary employee at the time of her dismissal. She had been employed for three weeks. She remained unemployed at the time of the hearing, six years later. The decision noted that, barring reinstatement, “her career options are dismal”.

As to the issue of ill-will, the Tribunal concluded, rightly, that the employee’s election to pursue legal remedies cannot be an obstacle to the remedy. In addition, it was observed that the employer was a large organization.

The order allowed for reinstatement into an equivalent level position, which was to be subject to a 6 month probationary period. ⁴

The Alberta Court of Appeal, in obiter, in a 2013 decision suggested that reinstatement may be not be the correct remedy where “the employment was time-limited and of relatively short duration”. The conjunctive is to be noted. If the employment was subject to a contractually limited time period, this would naturally follow: ⁵

While, practically speaking, recourse sought through a human rights complaint may not necessarily result in reinstatement where the employment was time-limited and of relatively short duration, the remedy of damages equivalent to lost wages was alternately available, mirroring the likely result of any successful arbitration had one occurred in these circumstances.

As noted, the cases in which this submission has been made, let alone succeed are few and far between.

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1. Alberta Court of Appeal: Mittelstadt aka Pratt v University of Alberta
2. Alberta Court of Appeal: Mittelstadt aka Pratt v University of Alberta
3. Cowling v Alberta  
4. The case went to the Court of Appeal but not on the issue of the propriety of the remedy.
5. AUPE v Alberta