COURT OF APPEAL FOR ONTARIO

2016 ONCA 421

DATE: 20160531

DOCKET: C60438

Laskin, Pardu and Roberts JJ.A.

BETWEEN

Hamilton-Wentworth District School Board

Applicant (Appellant)

and

Sharon Fair, Human Rights Tribunal of Ontario and Kaye Joachim and Ontario Human Rights Commission

Respondents (Respondents)

Roy Filion and Mark Zega, for the appellant

Ed Canning, Wade Poziomka and Jennifer Zdriluk, for the respondent Sharon Fair

Margaret Leighton, for the respondent Human Rights Tribunal of Ontario

Insiya Essajee, for the intervenor Ontario Human Rights Commission

Heard: November 25, 2015

On appeal from the order of the Divisional Court (Justices Matlow, Whitaker and Ellies), dated September 29, 2014, with reasons reported at 2014 ONSC 2411, by way of judicial review of the decisions of Kaye Joachim, dated February 17, 2012 and March 14, 2013, with reasons reported at 2012 HRTO 350 and 2013 HRTO 440.

Roberts J.A.:

Overview

[1] This appeal concerns an employer’s duty to accommodate a disabled employee and the seldom-invoked remedy of reinstatement of an employee to her employment, under the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”).

[2] The appellant, Hamilton-Wentworth District School Board (the “School Board”), submits that the Divisional Court erred in dismissing its application for judicial review of the Human Rights Tribunal of Ontario’s (the “Tribunal”) decisions with respect to liability and remedy.

[3] The Tribunal accepted the complaint by the respondent, Sharon Fair, and found that the School Board had discriminated against Ms. Fair by failing to accommodate her disability. As a remedy, among other relief, the Tribunal ordered Ms. Fair’s reinstatement to employment with the School Board. The Divisional Court dismissed the School Board’s application for judicial review.

[4] The School Board argues that the Divisional Court erred in finding to be reasonable the Tribunal’s findings that there were positions available with the School Board in which Ms. Fair could and should have been placed as accommodation of her disability, and in ordering that Ms. Fair be reinstated to her employment with the Board after 14 years of absence.

[5] For the reasons that follow, I see no error in the decision of the Divisional Court. In essence, the School Board is asking this court to retry the findings of fact that were made by the Tribunal, in the exercise of its specialized knowledge and discretion, and that were amply supported by the evidence. The Tribunal’s decision was reasonable and there is no basis for this court to interfere. I would therefore dismiss the appeal.

Background

[6] Ms. Fair started her employment with the School Board in October 1988. In the seven years before taking a medical leave of absence, she occupied the position of Supervisor, Regulated Substances, Asbestos.

[7] In the fall of 2001, Ms. Fair developed a generalized anxiety disorder, as a result of which she was hospitalized for almost a month. She was subsequently diagnosed with depression and post-traumatic stress disorder. This disability developed in response to the highly stressful nature of her job and her fear that, in making a mistake about asbestos removal, she could cause personal injury to others and be held personally liable for a breach of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1.

[8] In October 2001, Ms. Fair commenced an approved medical leave of absence from her employment. From March 2002 until April 2004, she received long-term disability (“LTD”) benefits from the Ontario Teachers Insurance Plan (“OTIP”), having met the standard of being totally disabled from performing the duties and responsibilities of her position.

[9] In April 2003, Ms. Fair indicated that she wanted to return to work. Ms. Fair’s OTIP consultant contacted the School Board to set up a meeting to discuss her return to work. The School Board’s Disability Management Co-ordinator refused because she felt that she did not have enough information regarding Ms. Fair’s restrictions and limitations to be able to discuss possible employment accommodations.

[10] In June 2003, Ms. Fair began participating in a work-hardening schedule with the goal of returning to full-time employment. She made it clear that her participation in this program did not preclude her from accepting full-time employment as soon as it became available. In designing the work-hardening program, Ms. Fair’s treating psychiatrist, Dr. Patricia Murphy, had indicated to the School Board that accommodations were to exclude work involving any personal liability, including, for example, “overseeing construction or renovation projects”. Ms. Fair participated in the program from June 2003 to January 2004, volunteering with human resources.

[11] There were full-time job openings for which the Tribunal found Ms. Fair ought to have been considered.

[12] In June 2003, the School Board advertised a non-unionized “Staff Development Supervisor” position in the human resources department, the duties of which had previously been performed by another employee. Ms. Fair, that other employee, and others applied and were interviewed for the position. In August 2003, the other employee was chosen as the successful candidate.

[13] In July 2003, as part of a re-organization process of its plant department, the School Board redistributed the duties of a departing Area Supervisor.

[14] In October 2003, Ms. Fair met with the Controller of the plant department and was informed that her medical condition precluded any accommodation within that department.

[15] In November 2003, Ms. Fair requested more information about accommodation. In response, the Disability Management Co-ordinator advised that the School Board required clarification about Ms. Fair’s restrictions and limitations.

[16] In December 2003, Dr. Murphy provided the School Board with a medical update, advising that Ms. Fair could not return to her previous role for medical reasons and that she should look at positions that provided her with less exposure to the kind of stresses experienced in her previous role.

[17] On December 15, 2003, Ms. Fair filed a human rights complaint, claiming that the School Board had discriminated against her under the Code by failing to accommodate her disability by placing her in a suitable alternate position.

[18] In February 2004, the School Board requested that Ms. Fair attend an appointment with Dr. S.W. Dermer, a psychiatrist, to clarify and identify any restrictions or limitations that Ms. Fair might have and how best to accommodate her. In her March 1, 2004 instructing letter to Dr. Dermer, the School Board’s Disability Management Co-ordinator stated that:

Sharon has a skewed view of entitlement and says we owe her a job and we are violating her human rights.… I view Sharon as being extremely manipulative – if she believes you have something that can help her, she treats you well – otherwise.…She can enhance details to attempt to sway your perspective.… The rehab worker from OTIP has told me that she views Sharon as manipulative, difficult and single minded.

In closing, she directed Dr. Dermer to “Please help identify REAL limitations/restrictions, fitness to return to work, separate medical from preference, etc.”

[19] Ms. Fair’s eligibility for LTD benefits terminated in April 2004, because she was assessed as capable of gainful employment. She resumed sick leave benefits.

[20] In May 2004, Dr. Dermer, who had examined Ms. Fair and consulted with her treating psychiatrist, Dr. Murphy, provided the School Board with his opinion that Ms. Fair “suffers from a psychiatric impairment which renders her permanently disabled from her own occupation as a Supervisor, Regulated Substances.” He indicated his agreement with Dr. Murphy’s opinion of Ms. Fair’s restrictions and limitations, specifically:

Ms. Fair would not be able to function in a job which entailed responsibility for health and safety issues, nor any duties which would leave her at risk for personal liability. Outside these limitations and restrictions, Ms. Fair is otherwise capable of gainful employment, as she is not currently deemed to suffer from a psychiatric impairment sufficient to render her totally disabled.

[21] The School Board did not identify another suitable position for Ms. Fair. On July 8, 2004, the School Board terminated her employment and offered her a severance package.

[22] On November 24, 2004, Ms. Fair filed a further complaint with the Ontario Human Rights Commission, claiming that the Board had breached the Code by terminating her employment.

[23] On July 4, 2006, Ms. Fair commenced a civil action claiming wrongful dismissal. The civil action remains active but was stayed pending the outcome of the human rights complaint process.

[24] Following amendments to the Code, Ms. Fair transferred her case to the Human Rights Tribunal. In May 2009, in these new proceedings, Ms. Fair for the first time specifically requested reinstatement as a remedy.

Decisions of the Human Rights Tribunal

(i) Liability

[25] The Tribunal released its decision with respect to liability on February 17, 2012. The Tribunal concluded that the Board discriminated against Ms. Fair on the basis of disability by failing in its duty to accommodate her beginning in April 2003.

[26] The Tribunal found that Ms. Fair had fulfilled her obligation to co-operate fully in the accommodation process, including staying in constant communication with the School Board and providing her consent to the release of medical information.

[27] By contrast, the Tribunal concluded that the School Board had “failed to actively, promptly, and diligently canvas possible solutions to [Ms. Fair’s] need for accommodation.” That conclusion was based on a number of findings.

[28] First, the Tribunal looked to the actions and inactions of the School Board’s Disability Management Co-ordinator. Those included, among others: the failure to adopt an active role in canvassing all possible accommodation solutions from the outset; the failure to meet with the vocational rehabilitation consultant from Ms. Fair’s long-term disability insurer to explore volunteer or work-hardening activity; and the attempt to influence the School Board’s medical expert to conclude that Ms. Fair was not worthy of accommodation.

[29] Second, the Tribunal considered the School Board’s refusal to accommodate Ms. Fair’s placement in available positions either temporarily or permanently. Specifically, the Tribunal held that the School Board could have accommodated Ms. Fair without undue hardship by placing her in the positions of Area Supervisor in the plant department and Staff Development Supervisor in the human resources department.

[30] The Tribunal found that the budget documents for 2003/2004 reflected that there were surplus full-time Area Supervisor positions in the plant department, Ms. Fair’s former department. Further, the Tribunal concluded that there was a genuine vacancy for the position of Staff Development Supervisor in the human resources department, where Ms. Fair had been volunteering during her work-hardening program, because the School Board had posted the position. It found that the position would have offered an opportunity for a lateral transfer without the displacement of any other party.

[31] Finally, the Tribunal found a failure to accommodate on the part of the School Board when it neglected to give any consideration to Ms. Fair’s ability to perform in alternate employment opportunities following the receipt of its expert’s report in May 2004, and instead terminated Ms. Fair’s employment.

(ii) Remedy

[32] On March 14, 2013, the Tribunal released its decision on remedy and ordered, among other relief, the reinstatement of Ms. Fair to her employment with the School Board. In particular, the Tribunal concluded that, as soon as reasonably possible, Ms. Fair was to be reinstated to a suitable position for which she had the basic general qualifications, equivalent to the level that she had been at when last employed by the School Board. The position was not to involve exposure to personal liability for health and safety similar to the potential liability caused by working with asbestos. The School Board was also required to provide up to six months of training to prepare Ms. Fair for the position.

[33] In ordering reinstatement, the Tribunal rejected the School Board’s argument that the passage of time precluded or rendered unfair Ms. Fair’s return to employment with the School Board. Specifically, the Tribunal noted that the delay in processing Ms. Fair’s human rights complaint was not her fault and that Ms. Fair’s “assiduous” efforts to find and engage in employment over the years indicated that she was still capable of returning to full-time employment.

Decision of the Divisional Court

[34] On September 29, 2014, the Divisional Court dismissed the School Board’s application for judicial review of the Tribunal’s decisions. Relevant to the issues raised and pursued on appeal, the Divisional Court upheld as reasonable the Tribunal’s findings that the School Board had failed to accommodate Ms. Fair to the point of undue hardship and that reinstatement was an appropriate remedy in the circumstances.

[35] With respect to liability, the Divisional Court held that the Tribunal’s finding that the School Board never had any real intention to accommodate Ms. Fair, including its criticism of the School Board’s Disability Management Coordinator’s efforts to undercut Ms. Fair’s and her insurer’s efforts to obtain less demanding work, was “amply supported by the evidence to which the Vice-Chair referred, particularly the documentary evidence.”

[36] On the issue of reinstatement, the Divisional Court found the Tribunal’s reasons to be “intelligible, transparent and with justification.” The Divisional Court recognized the broad remedial authority of the Tribunal to order reinstatement and, while acknowledging the relative uncommonness of the remedy in human rights litigation, noted that it was not unusual in labour relations litigation under the provisions of a collective agreement, “where one might be dealing with exactly the same issues.” The Divisional Court also agreed with the Tribunal’s conclusion that the passage of time did not render reinstatement inappropriate because “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 [Ms.] Fair.”

[37] On January 12, 2015, the Divisional Court dismissed Ms. Fair’s motion to correct “clerical” errors in its September 29, 2014 decision, leaving the issue to this court.

Issues

[38] The School Board raises the following issues on appeal:

(i) Is the Divisional Court’s apparent error in incorrectly referring to the position of Area Supervisor rather than Staff Development Supervisor a clerical or substantive error and to what extent does that error affect the issues on appeal?

(ii) Did the Divisional Court err in holding that there was nothing unreasonable in the Tribunal’s findings on the issue of accommodation and that Ms. Fair should have been appointed to the position of Area Supervisor or Staff Development Supervisor?

(iii) Did the Divisional Court err in holding that the Tribunal’s finding that the School Board failed to accommodate Ms. Fair to the point of undue hardship was reasonable?

(iv) Did the Divisional Court err in holding that the Tribunal’s decision with respect to remedy was reasonable?

Analysis

Standard of appellate review

[39] On an appeal such as this one, the standard of review on findings of fact, findings of mixed fact and law, and the exercise of remedial discretion is reasonableness.

[40] This court recently explained the reasonableness standard in Taylor-Baptiste v. Ontario Public Service Employees Union, 2015 ONCA 495, 126 O.R. (3d) 481, at para. 42, as follows:

The reasonableness standard of review recognizes that certain questions coming before administrative tribunals do not lend themselves to only one particular result. Consequently, reasonableness is concerned with both the existence of justification, transparency and intelligibility of the decision-making process, as well as with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. Where the reasonableness standard applies to an issue, the person seeking judicial review must show that the tribunal could not reasonably have arrived at the decision it reached. [Footnotes omitted.]

[41] Moreover, under the reasonableness standard, as also articulated in Taylor-Baptiste, at para. 40, “the decisions of the Tribunal on determinations of fact and the interpretation and application of human rights law are entitled to the highest degree of deference having regard to the Tribunal’s expertise and specialization.”

(i) Is the Divisional Court’s apparent error in incorrectly referring to the position of Area Supervisor rather than Staff Development Supervisor a clerical or substantive error and to what extent does that error affect the issues on appeal?

[42] The Tribunal found that the School Board could have accommodated Ms. Fair in the positions of Area Supervisor in the plant department and Staff Development Supervisor in the human resources department of the School Board.

[43] The Divisional Court upheld the Tribunal’s findings on accommodation. However, the Divisional Court mistakenly referred to the position of “Area Supervisor”, rather than “Staff Development Supervisor”, in particular, as follows:

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.

[44] The School Board argues that this error indicates that the Divisional Court misconstrued material evidence and the parties’ submissions. As a result, this mistake rendered erroneous its conclusion that the Tribunal’s decision on accommodation was reasonable.

[45] I would not give effect to this ground of appeal. It is clear from the Divisional Court’s reasons that it was aware that there were two distinct positions in issue with respect to the question of Ms. Fair’s accommodation: see, in particular, para. 28 of its reasons. Moreover, the balance of para. 39 of its reasons demonstrates that the Divisional Court considered the relevant facts and findings made by the Tribunal with respect to the position of “Staff Development Supervisor” and the accommodation issues related to that position, notwithstanding that it misstated the name of the position.

[46] The Divisional Court’s error in misstating the name of the position was clerical and did not affect its decision.

(ii) Did the Divisional Court err in holding that the Tribunal’s findings on accommodation were reasonable and that Ms. Fair should have been appointed to the position of Area Supervisor or Staff Development Supervisor?

[47] The School Board submits that this ground of appeal involves errors by the Tribunal in its interpretation of discrimination and/or the duty to accommodate. In my view, these submissions are no more than an attempt to re-argue findings of fact reasonably made by the Tribunal.

[48] In order to put the School Board’s submissions and the Tribunal’s findings into the appropriate context, it is useful at this point to set out some general principles about the employer’s duty to accommodate an employee’s disability under the Code. I start with the Supreme Court of Canada’s articulation of the purpose of the duty to accommodate set out in Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43, [2008] 2 S.C.R. 561, at para. 14:

As L’Heureux-Dubé J. stated, the goal of accommodation is to ensure that an employee who is able to work can do so. In practice, this means that the employer must accommodate the employee in a way that, while not causing the employee undue hardship, will ensure that the employee can work. The purpose of the duty to accommodate is to ensure that persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship.

[49] Section 5 of the Code confirms the right of every person to equal treatment in the employment relationship without discrimination or harassment because of certain specified attributes, such as disability, which are listed in that section. Under s. 10 (1) of the Code, “disability” is defined to include a condition of mental impairment or a mental disorder.

[50] Section 17 of the Code is an interpretative provision that deals specifically with the duty to accommodate in the case of individuals who are disabled:

17. (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.

(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

[51] Failing to accommodate a person’s disability-related needs is therefore a violation of s. 5 of the Code, which prohibits discrimination against a person because of disability, if that person’s needs can be accommodated without undue hardship; the failure to take the appropriate steps to assess those needs is a violation of s. 5 of the Code: Lee v. Kawartha Pine Ridge District School Board, 2014 HRTO 1212, at para. 95; ADGA Group Consultants Inc. v. Lane (2008), 2008 CanLII 39605 (ON SCDC), 91 O.R. (3d) 649 (Div. Ct.), at paras. 107, 113.

[52] The assessment of a person’s disability-related needs and the appropriate accommodation to be made is a highly individualized process. As the Supreme Court of Canada observed in British Columbia (Public Service Employee Relations Commissions) v. B.C.G.S.E.U., 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3, at para. 64:

Courts and tribunals should be sensitive to the various ways in which individual capabilities may be accommodated. Apart from individual testing to determine whether the person has the aptitude or qualification that is necessary to perform the work, the possibility that there may be different ways to perform the job while still accomplishing the employer’s legitimate work-related purpose should be considered in appropriate cases. The skills, capabilities and potential contributions of the individual claimant and others like him or her must be respected as much as possible. Employers, courts and tribunals should be innovative yet practical when considering how this may best be done in particular circumstances.

[53] It is the employer’s onus to establish that it cannot accommodate the employee’s disability-related needs without experiencing undue hardship: B.C.G.S.E.U., at para. 62. “Undue hardship” is not defined under the Code. Its interpretation has been the subject of much judicial consideration. In Central Alberta Dairy Pool v. Alberta (Human Rights Commission), 1990 CanLII 76 (SCC), [1990] 2 S.C.R. 489, at pp. 520-21, the Supreme Court of Canada provided the following guidance:

I do not find it necessary to provide a comprehensive definition of what constitutes undue hardship but I believe it may be helpful to list some of the factors that may be relevant to such an appraisal. I begin by adopting those identified by the Board of Inquiry in the case at bar–financial cost, disruption of a collective agreement, problems of morale of other employees, interchangeability of work force and facilities. The size of the employer’s operation may influence the assessment of whether a given financial cost is undue or the ease with which the work force and facilities can be adapted to the circumstances. Where safety is at issue both the magnitude of the risk and the identity of those who bear it are relevant considerations. This list is not intended to be exhaustive and the results which will obtain from a balancing of these factors against the right of the employee to be free from discrimination will necessarily vary from case to case.

[54] In the present case, the evidence of both Ms. Fair’s treating psychiatrist and the School Board’s expert was that Ms. Fair had developed a psychiatric impairment that was caused by the stress of her former position. They agreed that her disorder disabled her from her former position. In particular, they opined that her disability prevented her from performing those essential duties of her former position that entailed responsibility for health and safety issues or that would leave her at risk for personal liability to the same extent as under that position. There is no dispute that Ms. Fair’s psychiatric impairment is recognized as a disability for the purposes of the Code. As a result, the School Board’s duty to accommodate Ms. Fair without undue hardship was triggered. These are the Tribunal’s findings. There is no error in these findings.

[55] I now turn to consider the question of whether the Tribunal erred in finding that Ms. Fair could have been accommodated without undue hardship. The onus was on the School Board to demonstrate that it could not accommodate Ms. Fair without undue hardship.

Ms. Fair’s capacity to return to full-time employment

[56] The School Board takes issue with the Tribunal’s finding that Ms. Fair was capable of returning to full-time employment by April 2003. In essence, it argues that Ms. Fair was not medically cleared to return to full-time employment. Further, the School Board maintains that Ms. Fair’s medical restrictions precluded her from working in a supervisory capacity because any supervisory position with the Board carries the potential for personal liability.

[57] I would not accept these submissions. It was open to the Tribunal on the evidence before it to conclude that Ms. Fair could return to work full-time in a supervisory position in 2003 and 2004. The Tribunal was entitled to accept Ms. Fair’s oral testimony and her email correspondence with the School Board, indicating her willingness and readiness to return to full-time employment. The work-hardening plan specifically anticipated a change in Ms. Fair’s status in that the plan could change “as required throughout the rehabilitation process and [would] be subject to further review”. There were also the opinions of Ms. Fair’s treating psychiatrist and the School Board’s own expert that Ms. Fair was capable of returning to full-time employment. Indeed, it was as a result of the treating psychiatrist’s medical opinion that OTIP determined that Ms. Fair was no longer entitled to receive LTD benefits.

[58] Moreover, in my view, the School Board too narrowly interprets the medical opinions to indicate that Ms. Fair was unable to work in any supervisory position because of potential liability and responsibility for safety issues. It was open to the Tribunal to construe the medical opinions as confining Ms. Fair’s medical restrictions to supervisory positions involving the same level of personal liability as her previous position. Certainly there was no evidence that the positions of Area Supervisor or Staff Development Supervisor involved the same risk of personal liability as Ms. Fair’s previous position.

Failure to appoint Ms. Fair to the position of Area Supervisor or Staff Development Supervisor

[59] The appellant further submits that the Tribunal erred by finding that the School Board had failed to accommodate Ms. Fair by not appointing her in the summer of 2003 to the position of Area Supervisor in the plant department or Staff Development Supervisor in the human resources department. The School Board argues that the Tribunal’s liability decision creates new and unreasonable standards of accommodation because it requires an employer to create a surplus position or displace an incumbent employee to accommodate a disabled employee. Consequently, the appellant argues, the Divisional Court erred by finding the Tribunal’s decision to be reasonable.

[60] I would not give effect to these submissions.

[61] As I explain below, the Tribunal made factual findings that there would have been no need for the School Board to create a surplus position, as the financial resources existed for the Area Supervisor position, or to displace an incumbent employee, as the Staff Development Supervisor position was vacant.

[62] The Tribunal did not create a new standard for accommodation but followed established principles. Specifically, the Tribunal’s decision is in keeping with the Supreme Court of Canada’s decision in Hydro Québec. In that case, at para. 17, the court articulated an employer’s duty, short of undue hardship, to arrange the employee’s workplace or duties to enable the employee to work, as follows:

Because of the individualized nature of the duty to accommodate and the variety of circumstances that may arise, rigid rules must be avoided. If a business can, without undue hardship, offer the employee a variable work schedule or lighten his or her duties – or even authorize staff transfers – to ensure that the employee can do his or her work, it must do so to accommodate the employee. [Emphasis added.]

[63] As the Tribunal correctly noted, the School Board’s own policy on the “Accommodation of Personnel” recognized the principle that reasonable accommodation of a disabled employee may in some circumstances require the transfer of the employee to another position, as follows:

If an employee cannot perform the essential duties in his/her existing position, accommodation may be made in other positions. The respondent will consider the following factors in this process: seniority, availability, qualifications, and legislative or contractual obligations.

[64] Consequently, the Tribunal’s conclusion that the School Board failed to accommodate Ms. Fair’s disability was fact-driven and one that it was entitled to make based on the evidence before it.

Area Supervisor position

[65] The School Board submits that, to have placed Ms. Fair into an Area Supervisor position in the summer or fall of 2003, it would have been required to create a position that was not needed and one that Ms. Fair had not indicated that she wanted or that she was capable of performing.

[66] I would not accept these submissions. The Area Supervisor position was in the plant department where Ms. Fair formerly worked for over seven years. At that time, the plant department was in the process of re-organization and it was anticipated that several more Area Supervisors would be hired. The School Board ultimately decided not to fill these positions because of budgetary restraints but instead redistributed the duties of those positions among existing employees.

[67] However, there was no evidence that the School Board did not have the financial resources, even during a period of fiscal restraint, to fill the position of Area Supervisor, or that it would have caused undue hardship to do so. On the contrary, as the Tribunal noted, the School Board’s 2003/2004 budget provided for this position. Moreover, as indicated by Ms. Fair in her June 2003 email to the Disability Management Co-ordinator, she wanted to be considered for opportunities within the plant department. However, the Controller of the plant department refused to consider her for any position other than her previous position.

[68] As a result, there is no basis to interfere with the Tribunal’s factually-based conclusion that the School Board could have placed Ms. Fair in the position of Area Supervisor in the plant department.

Staff Development Supervisor position

[69] The School Board argues that the Tribunal misapprehended the evidence because there was no vacancy in this human resources position: the position had been temporarily occupied by another employee and continued to be occupied by her when Ms. Fair was reporting to her during her rehabilitation period. There was no issue that the other employee was more qualified for the position than Ms. Fair. According to the School Board, placing Ms. Fair into the position would have required the School Board to displace the other employee, which would have created undue hardship.

[70] The School Board’s arguments ignore evidence that the Tribunal was entitled to accept. First, as the Divisional Court agreed, the position was vacant. The other employee was not an incumbent in the position. If she had been, the School Board would not have been obliged to post the position to allow for competition in accordance with its own policy. The fact that there was a competition meant that there was no certainty that the other employee would be the successful applicant. Moreover, the fact that the School Board interviewed Ms. Fair and that she was one of the four applicants on the short list signified that Ms. Fair must have had more than the minimum qualifications for the position. Finally, there was no evidence that the other employee’s displacement from the position would have caused undue hardship to her, any other employee, or to the School Board.

[71] The School Board also submits that there is no authority for the proposition that, in order to accommodate someone with a disability, that person should be given preference over someone who is a legitimate contender and the more qualified candidate for an employment position.

[72] The School Board’s argument misconstrues an employer’s duty to accommodate.

[73] It is true that an employer has no obligation to place a disabled employee into a position for which he or she is not qualified: see, for example, Ellis v. General Motors of Canada Ltd., 2011 HRTO 1453, at para. 28; United Food and Commercial Workers Union, Local 1000A v. Kretschmar Inc. (MacEachern Grievance) (2004), 2004 CanLII 94741 (ON LA), 129 L.A.C. (4th) 68, at paras. 7, 13-14, 21.

[74] However, to fulfil its duty to accommodate an employee’s disability, an employer may be required in an appropriate case to place a disabled employee into a position for which he or she is qualified but not necessarily the most qualified.

[75] For example, in Re Union Carbide Canada Ltd. and E.C.W.U., Loc. 593 (1991), 1991 CanLII 13461 (ON LA), 21 L.A.C. (4th) 261, the arbitrator dismissed the grievance of an employee. The grievor was displaced by another employee who had been off work on a compensable injury and was not capable of performing his old job. The grievor had greater seniority than the returning employee. Nevertheless, the returning employee, who was capable of performing the position, was awarded the position because the employer’s obligation to accommodate under the Code prevailed over the seniority rights of the grievor.

[76] The Divisional Court held that the Tribunal’s decision was based on the evidence before it and was not unreasonable. I would agree. The Tribunal’s decision is entitled to deference and there is no basis to interfere with it.

(iii) Did the Divisional Court err in holding that the Tribunal’s finding that the School Board failed to accommodate Ms. Fair to the point of undue hardship was reasonable?

[77] The School Board submits that the Tribunal erred in finding that any procedural inadequacies in the accommodation process followed by the School Board amounted to a breach of the Code. It argues that its reasonable compliance with the rehabilitation plan, in the absence of specific medical clearance for Ms. Fair’s return to work, was sufficient to comply with its substantive obligations under the Code. It was only required to consider available positions after Ms. Fair had been medically precluded from returning to her original position, or had the rehabilitation plan been amended.

[78] The School Board maintains that the Tribunal failed to identify any available position within Ms. Fair’s restrictions at the time of the termination of her employment or in the foreseeable future. As a result, if it had not found that she should have been placed in either of the two positions discussed above, the Tribunal would not have found that the School Board had failed to accommodate Ms. Fair.

[79] I would not accept these submissions. They essentially boil down to a challenge of the reasonableness of the Tribunal’s finding that the School Board failed to accommodate Ms. Fair to the point of undue hardship.

[80] In the present case, it was open to the Tribunal on the evidence before it to find that Ms. Fair suffered from a disability that prevented her from performing or fulfilling the essential duties or requirements of her former position. This finding then engaged s. 17 of the Code, which required the School Board to accommodate Ms. Fair to the point of undue hardship.

[81] I would agree with the School Board’s submission that s. 17 of the Code does not impose a requirement on an employer to be perfect or allow the Tribunal to engage in speculation about what positions could potentially be available or performed by the disabled employee just because the accommodation process followed was not ultimately successful.

[82] However, that is not what happened here. Section 17 of the Code obligated the School Board to accommodate Ms. Fair’s needs to the point of undue hardship. This means that the School Board was required to take reasonable steps to accommodate Ms. Fair. Such reasonable steps, as the Tribunal explained, included altering her previous position or looking for alternate positions if the previous one could not be altered in order to accommodate her without undue hardship. As the Tribunal found, the School Board failed to do so.

[83] As the Divisional Court explained, the Tribunal found that the School Board “never had any real intention to accommodate [Ms. Fair].” Rather, the School Board’s position from the beginning was that Ms. Fair “was restricted from employment in all supervisory positions and, therefore, [it would] not accommodate her even if one was available.”

[84] It was open to the Tribunal to conclude that the School Board had failed to accommodate Ms. Fair’s needs without undue hardship. As the Divisional Court noted, the Tribunal implicitly held that the duty to accommodate was not put on hold during the work-hardening program. The Tribunal also held that the School Board had a duty to obtain the medical evidence necessary to accommodate Ms. Fair, that Ms. Fair was willing to provide this information, and that the School Board had not fulfilled this duty.

[85] The Tribunal fairly observed that the medical evidence required clarification concerning Ms. Fair’s restrictions and that, as Dr. Dermer stated during his evidence, it would have been a simple thing for the School Board to clarify those restrictions with its own expert. There was no evidence that the School Board made any attempt to clarify Ms. Fair’s restrictions with its own expert or consider alternate positions during the two months following receipt of its expert’s report in May 2004, confirming that Ms. Fair was capable of gainful employment, and its termination of Ms. Fair’s employment in July 2004.

[86] Overall, as the Divisional Court held, the Tribunal’s finding that the School Board failed to accommodate Ms. Fair to the point of undue hardship was reasonable. I would agree. There is no reason to interfere.

(iv) Did the Divisional Court err in holding that the Tribunal’s decision with respect to remedy was reasonable?

[87] The School Board submits that because Ms. Fair did not initially ask to be reinstated and did not request that remedy until the new tribunal and transition process were in force, she was precluded from receiving this remedy from the Tribunal.

[88] I do not agree with these submissions. As the School Board concedes, under the former system, complainants did not have to specify remedies. When she transferred her complaint in 2009, Ms. Fair was entitled to request this remedy.

[89] Further, the School Board submits that the remedy of reinstatement is unreasonable, unprecedented and disproportionate after a delay of so many years and in light of the failure of the Tribunal to identify any available position to which Ms. Fair could return. It also argues that the Divisional Court erred in drawing a comparison between reinstatement in human rights litigation and labour relations litigation.

[90] I would not accept these arguments.

[91] First, while rarely used in the human rights context, the remedy of reinstatement clearly falls within the Tribunal’s discretion to order under s. 45.2(1) of the Code, as follows:

45.2 (1) on an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

[92] As the Divisional Court correctly noted, “The Code provides the Tribunal with broad remedial authority to do what is necessary to ensure compliance with the Code.”

[93] The determination of remedy falls within the specialized expertise of the Tribunal, and as such is accorded a high degree of deference: Phipps v. Toronto Police Services Board, 2010 ONSC 3884, 325 D.L.R. (4th) 701 (Div. Ct.), at para. 42, aff’d 2012 ONCA 155, 347 D.L.R. (4th) 616.

[94] Further, Ford Motor Co. of Canada Ltd. v. Ontario (Human Rights Commission) (2001), 2001 CanLII 21234 (ON CA), 209 D.L.R. (4th) 465, where this court set aside the reinstatement of an employee, is distinguishable from the present case. Although in Ford Motor, this court pointed to the time that had passed since the employee’s dismissal, it also relied on the internal inconsistencies within the Board’s decision and the lack of consideration of an arbitrator’s prior decision upholding the discharge: see paras. 68-73.

[95] The passage of years is not, by itself, determinative of whether reinstatement is an appropriate remedy. Rather, the decision as to whether to order reinstatement is context-dependent. In the present case, the Tribunal found none of the barriers to reinstatement that foreclosed reinstatement in the Ford Motor case. Specifically, Ms. Fair’s employment relationship with the School Board was not fractured and the passage of time had not materially affected her capabilities.

[96] Moreover, the Divisional Court’s reference to the labour relations context was not unreasonable or unusual. For example, the Tribunal in Krieger v. Toronto Police Services Board, 2010 HRTO 1361, espoused similar principles. This case involved an application by a terminated employee for reinstatement following alleged discrimination. In examining the issue of reinstatement, the Tribunal noted, at para. 182:

While reinstatement orders are rarely requested or ordered in human rights cases, they are “normally” ordered in arbitral cases where a violation of a grievor’s rights has been found, unless there are “concerns that the employment relationship is no longer viable” A.U.P.E. v. Lethbridge Community College, [2004] 1 S.C.R. 727, 2004 SCC 28 (S.C.C.), at para. 56. The goal of human rights legislation, which is remedial in nature, is to put the applicant in the position that he or she would have been in had the discrimination not taken place. See Impact Interiors Inc. v. Ontario (Human Rights Commission) (1998), 1998 CanLII 17685 (ON CA), 35 C.H.R.R. D/477 (Ont. C.A.). Where viable, reinstatement is sometimes the only remedy that can give effect to this principle.

[97] Finally, there was no error in the Tribunal’s requiring the School Board to determine the appropriate position. The School Board remains in the best position to determine what positions are available or could be made available, and the adjustments that it will be required to make in order to accommodate Ms. Fair.

Disposition

[98] For these reasons, I would dismiss the appeal.

[99] If the parties cannot agree on the disposition of costs here and before the Divisional Court, they may make brief written submissions of no more than two pages as follows: the respondents shall deliver their submissions by June 14, 2016; and the appellant shall deliver its submissions by June 24, 2016.

Released: May 31, 2016

“L.B. Roberts J.A.”

“I agree John Laskin J.A.”

“I agree G. Pardu J.A.”