Reinstatement is a common concept in other Canadian jurisdictions. The wording of the legislation varies but it typically provides authority to the human rights tribunal to take such action to remedy the wrong doing or alternatively specifically empowers reinstatement.
The interpretation of this provision allows the tribunal to consider in its discretion whether reinstatement is viable in the context of the facts before it.
It is not a default remedy as may expected in arbitral jurisprudence, apart from two cases interpreting the federal statute which spoke of the “duty” to attempt to reinstate, decisions which have not been referenced as authority for this concept subsequently.
The comparison is also offered to put the Ontario remedy in some degree of perspective. Reinstatement is viewed as a discretionary remedy and has been ordered when considered appropriate with due regard to all factors in play in the remaining common law jurisdictions.
The complainant appears to have the onus although this is not specifically defined in the case law, but given that remedy is discretionary, this is a fair presumption. The cases are all very much fact driven. Typically the decision maker seeks to determine if the remedy is viable by assessing if the work environment has fallen into an unworkable circumstance by the degree of angst between the parties. Also there usually there follows an examination of the relative prejudice caused to either party by such an order.
Apart from the factual underpinning, the really only contentious issue is whether there should be some consideration given to why any apparent animosity between the parties has come to exist.
One case does speak to this issue where such ill will is caused by the litigation, in that it is the conduct of the wrongdoer which brought about the adversity and hence should be of no moment to the requested relief. This will be particularly so in a case involving allegations of sexual harassment. This does make logical sense. It would appear unfair to deny such a remedy when the source of the conflict emanated from the very wrongdoing which the remedy seeks to redress.
Canada
Reinstatement is not considered an unusual remedy under the Canadian Human Rights Act. Many decisions have routinely ordered this relief as the means by which the complainant has been restored to the former position.1
In one decision, 2 a case of sexual harassment, the panel noted that reinstatement was unworkable due to apparent bitterness between the parties, at least in the position sought, a conclusion which did not deny the complainant from reinstatement yet was ordered instated to an alternate position. The applicant successfully reviewed this decision. 3 She was reinstated. The Federal court noted that it was employee who was the innocent party and hence could not be held accountable for the “bitterness” and the “recipe for disaster” as reinstatement had been initially described by the panel.
The tribunal referenced the principle of fashioning the remedy in general terms, as consisting of a "duty" to restore the complainant to the prior position held: 4
As noted above, where a complaint of discrimination is found to be substantiated, it is the duty of a human rights tribunal to attempt to restore the complainant to the position that she would have been in, but for the discrimination.
The decision continued to order reinstatement:
I am satisfied that, had Ms. Neufeld not acted in a discriminatory fashion towards Ms. Nkwazi, Ms. Nkwazi would still be employed at the RPC. As a result, I order CSC to reinstate Ms. Nkwazi to a position of casual nurse at the RPC at the first reasonable opportunity.
This principle was followed in a further tribunal decision which spoke to this issue in the same words: 5 6
Where a complaint of discrimination is found to be substantiated, it is the duty of a human rights tribunal to attempt to restore the complainant to the position that she would have been in, but for the discrimination. In this case, that duty is best discharged by reinstating Ms. Desormeaux to her position as a bus operator with OC Transpo.
The passing of time seems to be of no moment. An order of reinstatement has been made 13 years after the termination. 7In the same case, the applicant was instated to a higher level position that that which he held previously, 8based on his argument that such would have unfolded in the natural progression.
The issue of the inconsequential effect of the passing of time is not a universal truth. In one case it was determining that the lengthy passing of time would place the applicant in a position superior to current employees then laid off. 9
This position is in conflict with the basic objective of restoration of the status quo. The decision should reflect that which would have followed. Had the complainant likely been laid off in any event of the wrongdoing, then the remedy should reflect this.
Western Provinces
In B.C, generally the test of reinstatement is one to determine if the relationship is one which remains viable.10
In Alberta, the remedy certainly is also not reflexive, 11 but as in the case of British Columbia cases, it has been exercised as a matter of contextual discretion. The factors considered will include the degree of any ill will from one party to the other, whether the relationship remained viable even through the litigation process, the degree of prejudice to be caused by the requested order and in this case, the apparent benefit to the complainant, given that she remained unemployed. 12
Saskatchewan again applies the same principle, as noted in Merrick v Ipsco Saskatchewan Inc. (No. 3) (drug dependency) and in so doing, has also considered the application of the “but-for” test. This was a complaint against both the employer and the union. The unionized environment was a factor in allowing the reinstatement remedy:
While reinstatement is not appropriate in all circumstances, the purpose of human rights legislation is to put a person in the position that she/he would have been but for the contravention of the Code. Subsection 31.3(b) specifically authorizes reinstatement in employment.
...[443] In the arbitration context, reinstatement as a result of an employer violating the provisions of a CA relating to "just cause" for dismissal is the rule rather than the exception. This recognizes the employee”™s investment in his employment through years of service, 24 in Merrick”™s case. In keeping with the principle discussed in the case Re Tenant Hotline and Peters (1983), 1983 CanLII 4854 (ON LA), 10 L.A.C. (3d) 130 at 138—39 when an employee such as Merrick invests a big part of his life in his job, as a matter of fairness, this investment should not be arbitrarily or unjustly extinguished, especially as a result of discrimination.
[444] There was no evidence to indicate that reinstating Merrick to his previous employment at Ipsco would result in any significant disruption of the workplace environment.
In a further case, 13an award for lost wages was made for five years from 1999 to 2003 and also the City was ordered to offer re-employment to such a permanent position when one was available. The Court of Appeal upheld the substance of the decision.
This case involved the disability of cerebral palsy. The tribunal determined that were it not for the adverse treatment, the employee would have completed his casual employee status and have been transferred to permanent status, as was ordered.
Manitoba
The Code in Manitoba contains a term which prevents the removal of any person who had accepted employment in good faith. The argument has been made that this prevents the reinstatement of any person in this context. The submission was made in support of an application to dismiss the complaint due to a reasonable settlement offer being made, one which did not include reinstatement. No decision was made on this specific issue, although the application was dismissed.
The precise wording is:
No expulsion of incumbents
44 No decision or order made by an adjudicator under this Code shall
(a) require the removal of any person from an employment or occupation, if the person accepted the employment or occupation in good faith; or
(b) require the expulsion of any occupant of housing accommodation, if the occupant obtained possession of the accommodation in good faith.
Maritime Provinces
A New Brunswick panel applied the same test as whether the relationship was viable the absence of any chasm between the parties on a personal level, 14which presumably would have been a factor in assessing the propriety of reinstatement. 15
The Tribunal in a further decision noted that the “usual remedy” is to allow reinstatement when a violation of the statute has been found. 16
The general view again is that the remedy must be viable. The evidence of the complainant to the effect that he doubted reinstatement would be a positive experience for him was considered a negative factor to deny the award. 17
One factor in allowing reinstatement in an age discrimination case was that the complainants were all over the age of 65 and otherwise would have suffered economic hardship in finding employment.18
An order of reinstatement can be made even where the applicant does not return to active employment.19 This can have tremendous significance as noted below.
Consideration to Canada Labour Code Unjust Dismissal
The unjust dismissal remedy under the Canada Labour Code has been interpreted on a similar basis, namely that while the intent is to apply a “make whole” philosophy, reinstatement is a discretionary remedy. 20 In this instance the first level decision maker had denied reinstatement due to the dishonesty of the complainant in not reporting post-termination income during the period she had asserted that she was disabled and unable to work, which was first revealed in her cross-examination during the hearing.
This decision reversed on this issue on first instance in review by the Federal Court. The Federal Court of Appeal set aside the decision of the motions judge and ordered that the decision of the adjudicator stand. The remedy of reinstatement was one which within the discretion of the adjudicator. The issue of trust was fundamental to the existence of a continued employment relationship.