Hamilton-Wentworth District School Board v. Fair, 2014 ONSC 2411
CITATION: Hamilton-Wentworth District School Board v. Fair, 2014 ONSC 2411
DIVISIONAL COURT FILE NO: 476/13 JR
DATE: 20140929
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATLOW, WHITAKER and ELLIES JJ.
B E T W E E N:
HAMILTON-WENTWORTH DISTRICT SCHOOL BOARD
Applicant
- and -
SHARON FAIR, HUMAN RIGHTS TRIBUNAL OF ONTARIO and KAYE JOACHIM
Respondents
- and -
ONTARIO HUMAN RIGHTS COMMISSION
Respondents
Roy Filion & Mark Zega,
for the Applicant
Ed Canning, Wade Poziomka & Jennifer Zdriluk,
for the Respondent, Sharon Fair
Margaret Leighton,
for the Respondent, Human Rights Tribunal of Ontario
Anthony Griffin & Margaret Flynn,
for the Respondent, Ontario Human Rights Commission
HEARD: at Hamilton February 27, 2014
and at Toronto March 20, 2014
BY THE COURT:
Introduction
[1] This is an application for judicial review brought by the Hamilton-Wentworth District School Board (the “Board”).
[2] The Board asks us to review two decisions of the Human Rights Tribunal of Ontario (the “Tribunal”).
[3] By the two decisions, the Tribunal granted relief to the respondent, Sharon Fair (“Fair”), a complainant before the Tribunal. In the first decision, the Tribunal found that the Board discriminated against Fair by failing to accommodate her disability. By the second decision, the Tribunal awarded Fair damages and ordered her reinstatement and other relief.
[4] The Board argues that the decisions of the Tribunal should be quashed for reasons that can be grouped into three areas: breaches of procedural fairness and natural justice, unreasonable findings of fact and law, and an unreasonable remedy.
[5] For the reasons that follow, the application for judicial review is dismissed.
Overview
[6] Fair was employed by the Board from October 24, 1988 to July 8, 2004, when her employment was terminated. She was initially hired as a casual technician. At the time of her termination she was a Supervisor, Regulated Substances, Asbestos.
[7] In the fall of 2001, Fair developed a psychiatric disorder, namely, generalized anxiety disorder. She left work on October 2, 2001, on disability leave. She came to have depression and post-traumatic stress disorder. This disability was related to the stress of her job and the perceived threat to her of personal liability being imposed on her for a violation of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1.
[8] On March 14, 2002, Fair began to receive long-term disability benefits. These terminated on April 3, 2004.
[9] The Board took the position that it could not place Fair in a suitable job because of work restrictions related to her disability. On July 8, 2004, following the decision of the Board that she could not be accommodated without causing undue hardship, Fair’s employment was terminated.
[10] Fair filed a complaint with the Ontario Human Rights Commission on November 24, 2004. The complaint was brought to the Tribunal under the transitional provisions of the amended Ontario Human Rights Code, R.S.O. 1990, c H.19 (the “Code”). Those provisions permitted Fair to initiate new proceedings before the Tribunal, which she did.
[11] On May 20, 2009, in the new proceedings, Fair asked for the first time to be reinstated. As the Board points out, this was about five years after her termination and close to eight years after she had stopped working.
[12] Fair’s application dealing with the issue of liability was heard by a panel comprised of the Vice-Chair for five days in January and February of 2012.
[13] The Vice-Chair released her decision on liability on February 17, 2012. In it, the Vice-Chair found that there were two jobs within the Board in which Fair could have been placed as early as June, 2003, which would have accommodated her disabilities. The Vice-Chair found that one job, namely, the Area Supervisor position, was a job for which Fair was particularly well-suited, inasmuch as she had been volunteering in that department at the time and had been interviewed for the position before it was filled with someone else.
[14] On September 13, 2012, the Vice-Chair heard the parties’ submissions as to remedy. At the commencement of the hearing, the Vice-Chair asked the Board if it would place Fair in a senior labour relations position. After the Board said it would not, and prior to the hearing of evidence, the Vice-Chair indicated that she would write a decision and that the lack of a position would be no excuse for no reinstatement (as paraphrased by the Board’s counsel).
[15] After opening statements, the Vice-Chair was asked by the Board to recuse herself from the remedy portion of the hearing on the ground that she had, by what she said, created a reasonable apprehension of bias. This issue was then fully argued, along with the issue of remedy.
[16] The Vice-Chair declined the request to recuse herself and provided her reasons for this conclusion in the decision dealing with remedy. In the remedy portion of that decision, the Vice-Chair made reference to the remedial provisions of the Code and jurisprudence relating to discrimination in other contexts before concluding that the objects of the Code would best be met by reinstating Fair and by awarding her compensation for the losses she had suffered as a result of the infringement of her rights.
The issues
[17] The issues for decision are twofold:
(i) What is the appropriate standard of review? and
(ii) Do the decisions of the Vice-Chair meet the appropriate standard of review?
1. The standard of review
[18] The appropriate standard of review with respect to the issues other than procedural fairness and natural justice is that of reasonableness. There is no standard of review applicable with respect to issues of procedural fairness and natural justice.
2. Did the Board meet the standard of review?
(A) Procedural fairness and natural justice
[19] The Board contends that the Vice-Chair made four errors that resulted in a denial of procedural fairness and natural justice.
(i) Reasonable apprehension of bias
[20] The Board maintains that the Vice-Chair ought to have recused herself on the basis that there was a reasonable apprehension of bias. We are unable to agree with that submission.
[21] In adjudicating the issue of bias, the Vice-Chair turned her mind to the factual assertions made by the Board and did not agree that she made the remark attributed to her. She held that, in her exchange with counsel during the course of the hearing, the Vice-Chair made it quite clear that she was questioning what the Board’s response might be “if”, and not “when”, she were to decide on reinstatement as remedy. In no way was she suggesting that she had already prejudged any of the issues to be determined.
[22] The Vice-Chair then referred to the decision of the Supreme Court of Canada in Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259 at page 58, for the proposition that no reasonable person would have concluded that she had lost an open mind on the issues between the parties. We agree. In the context of the parties’ discussions about remedy, we see nothing inappropriate in a discussion between parties as to what might happen in various potential scenarios. This is even more so for an institutional and sophisticated litigant in workplace litigation as the Board is.
[23] In addition to raising the Vice-Chair’s comments as a ground for judicial review, the Board raises one other complaint that it also raised before her. The Board argues that the fact that the Vice-Chair permitted Fair to file 27 additional books of documents as evidence instead of calling expert witnesses also gives rise to a reasonable apprehension of bias.
[24] With respect to this complaint, the Vice-Chair held that she had admitted the documents without prejudice to the parties’ rights to challenge any document as being inadmissible during the hearing and noted that the Board had not made any such objections. We have not been pointed to anything that contradicts this. We do not see how such a procedure could give rise to a reasonable apprehension of bias.
(ii) Failing to interpret the Tribunal’s rules correctly
[25] The Board alleges that the Vice-Chair failed to properly interpret the Tribunal’s rules correctly by initiating settlement discussions during the hearing, which is not permitted without the parties’ consent under Rule 8A (Human Rights Tribunal of Ontario, Rules of Procedure for Transition Applications under Sections 53(3) and 53(5) of the Human Rights Code). This complaint, like most of the others made before us, was also made before the Vice-Chair and dismissed, correctly, in our view, for two reasons.
[26] First, the Vice-Chair did not initiate settlement discussions. As we have indicated, the Vice-Chair was soliciting the Board’s submissions on the issue of reinstatement.
[27] Second, even if the Vice-Chair had improperly interpreted the rules, rule 43(8) provides that such a failure is not a sufficient ground upon which to set the decision aside, “unless the failure … caused a substantial wrong which affected the disposition of the matter”. In our view, no substantial wrong occurred.
(iii) Expanding upon the complaint
[28] The Board contends that the Vice-Chair permitted Fair to expand her complaint by seeking reinstatement and identifying the Staff Development Supervisor and Area Supervisor positions as required or reasonable accommodation when she had not done so in the initial complaint filed in November, 2004.
[29] In order to address these grounds of review, it is necessary to bear in mind that Fair’s complaint was processed during a period of change in the way in which Ontario enforced the provisions of the Code. At the time her complaint was first filed, Fair was not required to specify the remedy she requested. In 2008, however, Fair filed a Transition Application under the Transition Rules that permitted her for the first time to identify the remedy she was seeking. That application included a request that she be provided with “a supervisory position” with the Board. Therefore, the Vice-Chair did not exceed her jurisdiction in considering Fair’s request for reinstatement.
(iv) Failing to provide sufficient reasons
[30] This issue was not pressed at the hearing of the application for judicial review. On behalf of the Board, counsel submitted that one could not tell from the reasons on liability that there were two sides to the story. With respect to the reasons on remedy, he argued that they should have been more comprehensive, given the unusual nature of the remedy. There is no merit in either submission, in our view.
[31] The reasons on liability demonstrate that the Vice-Chair was alive to the Board’s position on the issues: see paras. 11, 37, 44 and 49.
[32] Further, both the liability and the remedy decisions were comprehensive, each over 50 paragraphs in length. They were indexed by issue and thoroughly discussed the facts, as well as the applicable case law.
[33] The Vice-Chair’s reasons were, to use the terminology in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, transparent, intelligible and with justification. We turn to those reasons now, to address the Board’s allegations that the Vice-Chair’s findings of fact were unreasonable.
(B) Unreasonable findings
[34] The substance of the Vice-Chair’s decision which is of most concern to the Board is the finding that there was no appropriate accommodation made by the employer and that reinstatement was ordered. The Board argues that it held Fair’s position open for her during her disability, that it tried to accommodate her concern about liability by offering an indemnity, that Fair was still on a “work hardening” program at the time the two jobs relied upon by the Vice-Chair came up, that one was not going to be filled for financial reasons, that the other was not really vacant, and that Fair did not have medical clearance to work in either of them, amongst other things. All of these arguments were made before the Vice-Chair and, in our view, reasonably dealt with by her.
[35] The Vice-Chair found that the Board never had any real intention to accommodate Fair. This finding was amply supported by the evidence to which the Vice-Chair referred, particularly the documentary evidence. For example, the evidence revealed that, as early as March of 2002, the Board’s position in response to enquiries by Fair’s insurer about the possibility of Fair doing less demanding work was that non-union jobs like the one she was unable to do were all demanding. In March of 2003, the Board’s Disability Management Coordinator refused to meet with Fair’s insurer for the purpose of exploring volunteer work or work-hardening activity. In March of 2004, the Disability Management Coordinator sent a memorandum to an expert retained on behalf of the Board in an obvious effort to negatively influence him against Fair.
[36] In addition to the documentary evidence, the Vice-Chair accepted Fair’s testimony, as she was entitled to do, concerning a meeting Fair had in October, 2003, in which she was told by the Controller of Plant Operations that she was either fit to return to her former position or she was not fit to return to the plant department at all.
[37] Based on the evidence, the Vice-Chair found that the Board’s position throughout was that Fair was restricted from employment in all supervisory positions and, therefore, would not accommodate her even if one was available.
[38] The Vice-Chair held implicitly that the duty to accommodate, which included finding alternative positions if the previous one could not be altered sufficiently, was not put on hold during the work-hardening program. The Vice-Chair held that the Board had a duty to obtain whatever medical evidence it needed to accommodate Fair, that Fair was willing throughout to provide it, and that the Board had failed in that duty.
[39] We can see nothing unreasonable in the Vice-Chair’s findings on the issue of accommodation. While it is true, as the Board indicates, that it had identified the person who should be appointed to the position of Area Supervisor, that position was vacant. If Fair had been assigned to the position, no other person would require displacement. It is difficult to conclude that Fair was accommodated to the point of undue hardship where she was not assigned to a vacant position which would have accommodated her disability – and this is within a pool of hundreds of employees for a large public sector employer.
(C) Reinstatement
[40] The Board raises concerns with respect to the reasonableness of the remedy of reinstatement granted by the Vice-Chair. In general, they relate to (1) the uniqueness of the remedy; and (2) the imposition of that remedy so long after the events giving rise to the complaint.
[41] It is certainly the case, as the Board points out, that reinstatement is an uncommon remedy in human rights litigation. It is not, however, unusual in labour relations litigation under the provisions of a collective agreement where one might be dealing with exactly the same issues.
[42] The Code provides the Tribunal with broad remedial authority to do what is necessary to ensure compliance with the Code. It is fair to say that while reinstatement is unusual, there is no barrier or obstacle to this remedy in law.
[43] Concerning the timeliness of the remedy, we agree with the submission made on behalf of Fair that the goal of the remedial provisions of the Code ought not to be thwarted because of the passage of time that was largely beyond the control of Fair.
[44] The Vice-Chair’s decision with respect to remedy is intelligible, transparent and with justification.
[45] The outcome is within the range of reasonable expectation.
Costs
[46] We heard the parties’ submissions as to costs at the conclusion of the hearing. Taking those submissions into account, we have concluded that Fair is entitled to costs, fixed at $15,000, all-inclusive.
Matlow J.
Whitaker J.
Ellies J.
Released: September 29, 2014
CITATION: Hamilton-Wentworth District School Board v. Fair, 2014 ONSC 2411
DIVISIONAL COURT FILE NO: 476/13 JR
DATE: 20140929
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATLOW, ELLIES and WHITAKER JJ.
BETWEEN:
HAMILTON-WENTWORTH DISTRICT SCHOOL BOARD
Applicant
- and -
SHARON FAIR, HUMAN RIGHTS TRIBUNAL OF ONTARIO and KAYE JOACHIM
Respondents
- and -
ONTARIO HUMAN RIGHTS COMMISSION
Respondent
REASONS FOR JUDGMENT
Matlow, Whitaker and Ellies, J.J.
Released: September 29, 2014