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Sharon Fair v. Hamilton-Wentworth District School Board, 2012 HRTO 350 (CanLII) (DECISION)

Sharon Fair v. Hamilton-Wentworth District School Board, 2013 HRTO 440 (CanLII) (DECISION ON REMEDY)

Summary:

Sharon Fair was employed with the Hamilton-Wentworth District School Board from October 24, 1988 to July 8, 2004 when her employment was terminated. In the fall of 2001 the applicant developed a generalized anxiety disorder related to the highly stressful nature of her job (supervising asbestos removal). The applicant received long-term disability benefits until April 3, 2004, when she was assessed as capable of gainful employment. From April 2003, the respondent failed to take steps to investigate possible forms of accommodation. From June 2003, the respondent failed to offer the applicant available, alternative work. Based on the evidence presented, it was found that the Hamilton-Wentworth District School Board discriminated against Fair on the basis of disability by failing in its duty to accommodate the applicant since April 2003. In this case it was ordered that the applicant be reinstated into “suitable alternative employment” (see paras 27 and 28), including adjusting the length of her seniority accordingly. In addition, it was ordered that the respondent pay the applicant lost wages from June 26, 2003 to the date of reinstatement. 

Question(s) to be Determined:

1. Did the respondent discriminate against the applicant on the basis of disability by failing to accommodate the applicant since April 2003?

Findings:

1. Did the respondent discriminate against the applicant on the basis of disability by failing to accommodate the applicant since April 2003?

YES

Reasoning:

1. In this case it was found that the respondent discriminated against the applicant on the basis of disability by failing to accommodate the applicant. This conclusion was based on a culmination of incidents regarding Ms. Fair and the Hamilton-Wentworth District School Board. “In reaching my conclusion I have considered their cumulative effect. I should not be taken to suggest that each matter, considered in isolation, would support a finding of a failure to fulfill the duty to accommodate” (para 17).

The cumulative incidents were outlined as follows:

a) The respondent's Plan administrator’s statement regarding the applicant's application for long-term disability benefits.

b) Failure to meet with OTIP Vocational Rehabilitation Consultant

c) Failure to provide the applicant with the essential duties of her position

d) Delay in meeting with the applicant

e) Failure to obtain the necessary expert opinion or advice it considered necessary

f) The respondent’s attempt to influence its expert witness

g) The respondent was not open to accommodating the applicant in another position

In particular, it is important to hi-light that the respondent failed to place the applicant in available positions. “I find that there were work opportunities from June 2003 in which the applicant could have been placed, either temporarily or permanently, without causing undue hardship to the respondent” (para 36). Available positions included “Area Supervisor” and Staff Developmental Supervisor.” In addition, the respondent failed to consider other options in relation to the applicant. “Upon being advised that the applicant was capable of alternative employment, it terminated her employment without giving any consideration to her ability to perform alternate employment opportunities” (para 48).

Remedies:

In this particular case the Hamilton-Wentworth District School Board was ordered to pay lost wages to Ms. Fair from June 26, 2003 until the date of reinstatement.  In this case Ms. Fair was awarded $420,000 (First Reference Talks, 2014). Additionally, the school board was required to reinstate Ms. Fair into a “suitable alternative employment” role (paras 27 and 28).

The respondent shall:

a. reinstate the applicant to suitable alternative employment as set out in paras. 27 and 28, including adjusting her length of seniority accordingly;

b. calculate the applicant’s loss of wages from June 26, 2003 until the date of reinstatement in accordance with the formula referred to in paragraph 30 and pay that amount to the applicant;

c. reinstate the applicant’s years of service with OMERS and pay the employer pension contributions and additional costs associated with the buy-back of service;

d. remit retroactive payment to the Canada Pension Plan, or compensate the applicant for any losses arising from the lost years of CPP pension contributions;

e. pay the applicant for out of pocket medical and dental expenses which would have been covered by the applicable benefit plans;

f. calculate the additional tax consequences flowing from the money owing as a result of this decision and compensate the applicant for the additional cost;

g. pay the applicant $30,000 as compensation for the injury to her dignity, feelings and self-respect;

h. pay pre-judgment interest on all monetary damages from November 24, 2004, the date of the original complaint, to the date of this decision, at the rate of 2.3% per year, pursuant to s. 127 of the Courts of Justice Act; andi. pay post-judgment interest on all damages from the date of this decision, at the rate of 3%, pursuant to s. 127 of the Courts of Justice Act.