In March of this year, we wrote about an alarming decision in which the Human Rights Tribunal of Ontario reinstated an employee of the Hamilton-Wentworth District School Board and ordered the employer to pay nine and a half years of back wages. Reinstatement is normally considered to be a particularly extraordinary remedy in human rights cases, and is rarely ordered. Furthermore, the unusually lengthy period of wage loss awarded was well out of line with the Tribunal’s normal practice with respect to lost wages.
In a more measured decision issued more recently, Macan v. Strongco, the Tribunal recognized that reinstatement is an extraordinary remedy that is “rarely requested or ordered in human rights cases.” The Tribunal narrowed the circumstances in which reinstatement should be ordered to where it is a unionized employee with a large employer, or where the individual was employed in an unskilled position. Similarly, the Tribunal said that where there were other, non-discriminatory reasons for the termination, reinstatement is not appropriate.
The Tribunal in Macan also took a more realistic approach to lost wages. It awarded the Applicant eight months of lost wages, ending at the point at which the Applicant started attending college following her termination.
The Tribunal’s comments about reinstatement are encouraging for employers in the wake of the Hamilton-Wentworth decision. Reinstatement is an extraordinary remedy that is only available under certain statutory schemes, and is rarely ordered because of the practical difficulties for employers in bringing back employee who have been out of the workplace for several years, possibly displacing another employee. The measured approach taken in Macon is the approach that should be taken in all cases.