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Wrongful Dismissal Leads to Human Rights Damages

For the first time, the Ontario Superior Court of Justice has awarded human rights related damages in relation to a wrongful dismissal action. The award was based on the application of s. 46.1 of the Ontario Human Rights Code (the “Code”). Amendments to the Code in 2008 granted Ontario Courts the ability to order damages or other forms of relief for human rights infringements through the operation of s. 46.1 (copied below).

46.1 (1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect. 2006, c. 30, s. 8.

The case of Wilson v. Solis Mexican Foods Inc. is the first instance in Ontario where the Superior Court has ordered such damages.

Patricia Wilson was terminated without cause after 16 months of continuous employment. In addition to seeking damages related to wrongful dismissal, Ms. Wilson stated she was terminated because of her on-going disability and sought damages related to discrimination.

The plaintiff commenced work with Solis Mexican Foods Inc. as an Assistant Comptroller in January of 2010 but quickly moved into a Business Analyst role by May of the same year. She was paid an annual salary of $65,000 plus other employment benefits.

In November of 2010 the Plaintiff underwent her first official performance review. The review was largely positive and her overall performance was graded as satisfactory or better in each category. In December of 2010 Ms. Wilson met with the HR Manager and explained a back ailment she was suffering with. Within five days of this meeting upper management had adjusted her performance review and was concerned that the plaintiff “may not be suited to” the defendant.

In March of 2011 Ms. Wilson took time off work related to her back ailment and provided medical documentation to her employer. The employer sought further medical information from the Plaintiff and her family physician and was informed that the Plaintiff could begin returning to work slowly by the end of March and return to full time hours by April 18, 2011. The employer refused this plan and stated that the employee should only return when capable of full duties. Further communication occurred between the three parties until the Plaintiff was ultimately terminated on May 19th, 2011. The employer cited the reason for termination as the sale of the defendant’s New Orleans Pizza organization.

With respect to the Human Rights damages, Justice Grace noted that discrimination has occurred if the Plaintiff’s disability formed any part of the decision to terminate her employment. Ultimately the Court found her disability to play a significant role in her termination. The temporal link between the employer’s revision of the performance review and the employer’s awareness of an ongoing disability was persuasive for the Court. Grace J. was unconvinced of the employer’s explanation regarding the sale of the pizza business because the possibility of corporate restructuring was not mentioned in a single instance prior to termination.

The Court determined that the Plaintiff lost “the right to be free from discrimination” and experienced “victimization”. Aggravating factors considered by the Court included seriousness of the breach and a finding that the employer was disingenuous both before and during termination. The Court awarded Ms. Wilson $20,000 in damages pursuant to s.46.1 of the Code and three months of common law reasonable notice based on the typical Bardal factors.

This decision represents an ongoing movement in the labour and employment field to allow various forums to be flexible in the remedies they fashion. Allowing a single forum to determine varying heads of liability can provide a more expeditious process but also means employers must be prepared to defend against a variety of allegations in a single hearing.

The importance of having a fully functioning workplace disability policy and return to work program is made clear by this case. The lawyers at CCP are able to assist with drafting accommodation policies and procedures and providing guidance to ensure that employers are fully compliant with Human Rights and Accessibility legislation.

Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.



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