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Ontario court orders human rights damages for wrongfully dismissed employee

Ryan Newell

December 17, 2013

Court orders employer found liable for wrongful dismissal to pay $20,000 in damages for breaching the Human Rights Code

The Ontario Human Rights Code was amended in 2008 to allow courts to award damages in civil proceedings when they concluded the Code had been violated. The new provision of the Code (s. 46.1) requires that there be a separate cause of action at play in the civil proceeding, in addition to the human rights breach.

The Ontario Superior Court of Justice recently relied on the new provision for the first time, awarding human rights damages in the context of a wrongful dismissal claim. In Wilson v. Solis Mexican Foods Inc., the Court awarded the plaintiff, Patricia Wilson, $20,000 in damages for violations of the Code in addition to damages in lieu of reasonable notice.

The basic facts of the case were as follows.

Wilson worked as an assistant controller and later as a business analyst for Solis Mexican Foods for a period of 16.5 months, earning a salary of $65,000 per year.  Wilson  received a grade of “satisfactory or better” on her 2010 performance evaluation. Soon thereafter she began to experience back pain which eventually led her to take some time off work. The medical evidence she initially provided in support of her need to be off work was lacking in detail, and the employer demanded more information. A few weeks later, Wilson provided a note from her physician proposing that she return to work on a graduated basis, starting with part time hours and returning to full time hours after two weeks’ time.  The employer rejected Wilson’s proposal, demanding that she be “capable of returning to full-time hours and full duties before making the transition back to the workplace.”

A couple of weeks later, Wilson’s physician submitted a “functional abilities form”, which indicated that Wilson was capable of returning to work full time, so long as the employer accommodated her need to alternate between sitting, standing and walking.  Again, the employer rejected the physician’s suggestion, stating that sitting was “vital to [her] being able to perform [her] job function.”

The employer did not offer any alternative accommodation.  Instead, approximately one month later, it terminated Wilson’s employment, claiming that her position had become redundant due to “organizational changes”.

Given that the employer did not allege it had cause for dismissal, the only issue arising out of the wrongful dismissal claim was the period of reasonable notice.  The Court determined that the proper notice period in the circumstances was three months.

More significant, however, was the Court’s conclusion that Wilson’s disability had been a “significant factor” in the employer’s decision to terminate her employment.  The Court found that the employer had been disingenuous in claiming that the reason for terminating Wilson’s employment was corporate restructuring.  Rather, the Court concluded that the employer used the sale of one of its divisions as the “excuse it needed to rid itself of the plaintiff once and for all.”

After holding that Wilson’s right to be free from discrimination had been infringed and that employer’s breach of the Code had been serious, the Court awarded Wilson $20,000.00 in damages under s. 46.1 of the Code.

While many plaintiffs have alleged that their rights under the Code have been violated in the context of wrongful dismissal claims, very few claims have made it before the courts, since wrongful dismissal actions are often settled in advance of trial. Wilson v. Solis Mexican Foods Inc. is the first instance in which a court has exercised jurisdiction under s. 46.1 to award damages for breaches of the Code in a wrongful dismissal case.  Now that one such case has been decided, we can expect more to follow.

It will be interesting to see how broadly the courts interpret s. 46.1(2), which gives the court the power to order “non-monetary restitution” in civil proceedings.  The Human Rights Tribunal of Ontario has the same power to order employers to reinstate employees whose rights under the Code have been breached.  Whether courts will interpret the Code in the same way remains an open, and very interesting, question.


Ryan Newell

Practice Areas

Civil Litigation, Human Rights Law