Ontario Court Issues First Award of Human Rights Damages

The Ontario Human Rights Code was amended effective June 2008 to allow individuals to seek damages for breaches of the Code in the context of a court action. Now, after more than 5 years of waiting, we have the first reported court decision awarding a plaintiff damages for a breach of the Code.

In Wilson v. Solis Mexican Foods Inc., the plaintiff Patricia Wilson was awarded $20,000 in recognition of “the importance of the right that was infringed, the impact of the defendant’s conduct on the plaintiff and the particular circumstances of the case.”

The circumstances are as follows: Ms. Wilson commenced employment with Solis in December of 2009. In December of 2010 Ms. Wilson advised Solis that she was experiencing difficulties with her back. In March 2011 Ms. Wilson stopped working due to her back problems.

By letter dated May 19, 2011, Solis advised Ms. Wilson that it had sold one of its divisions and as a result, her job function had become redundant. Ms. Wilson sued Solis claiming that she was entitled to 6 months of compensation in lieu of notice stemming from the termination of her employment. She also claimed damages under the Code alleging that her disability (i.e. her back problems) was a factor which Solis considered when deciding to terminate her employment.

On the record before the court, it appeared that shortly after Ms. Wilson advised Solis of her ailment, the management team of the company came to the conclusion that it was “time to consider that [Ms. Wilson] may not be suited to [Solis].” There was no evidence that this statement was related to Ms. Wilson’s back issues.

The court awarded Ms. Wilson three months’ notice, which seems reasonable given the circumstances of the case. The notable outcome of this case was the award of compensation under s.46.1 of the Code. The court found that Ms. Wilson’s back condition was a factor in Solis’ decision to terminate her employment. The court stated “I accept the proposition that a decision to terminate an employee based in whole or in part – on the fact that employee has a disability is discriminatory and contrary to the Code.”  The court also found that Solis had been disingenuous when stating that the reason for termination was due to the sale of one of its divisions.

The moral to take away from this case is that, when considering terminating the employment of an employee who has a disability, employers must proceed with caution. The disability cannot be taken into consideration when arriving at the decision. It is helpful if the employer can prove through documentation that the decision was wholly unrelated to the disability. This is often difficult to do, but not impossible. The second take away is that an employer should not be disingenuous with employees when it comes to the reason for termination.

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