First Award of Human Rights Damages in an Ontario Wrongful Dismissal Action

Wrongful Dismissal Action

In Wilson v. Solis Mexican Foods Inc. (“Wilson”), the Ontario Superior Court of Justice made the first award of damages pursuant to the Ontario Human Rights Code in a wrongful dismissal action.

The Employee commenced employment with the Employer on January 4, 2010 as an Assistant Controller, and in May of 2010 was laterally moved into the position of Business Analyst earning $65,000.00 per year plus benefits. In March of 2011, the Employee stopped attending the workplace as a result of her back and provided the Employer with a note from her family doctor indicating that the Employee required time off until further notice due to medical reasons. On March 28, 2011, the Employee informed the Employer that she was able to return to work on a gradual basis as directed by her family doctor. In response, the Employer rejected the Employee’s gradual return to work plan, ordering the Employee to return on a full-time basis, and provided the Employee with a Functional Abilities Form to be completed by April 18, 2011. The Employee’s doctor completed and returned the Form on April 12, 2011, indicating that the Employee could return on a full-time basis, but would require accommodation with respect to sitting, standing and walking. The Employer expressed concern to the Employee in response to the completed Functional Abilities Form, and requested that another Functional Abilities Form be completed by May 10, 2011. On May 19, 2011, being only 9 days after the second Functional Abilities Form was due, the Employer terminated the Employee’s employment as a result of organizational changes.

At Trial, the Ontario Superior Court of Justice determined that the Employee has been wrongfully dismissed and awarded the Employee 3 months notice. Additionally, the Ontario Superior Court of Justice found that the termination was in breach of the Ontario Human Rights Code. Specifically, it was determined by the Court that based on the evidence submitted at Trial, the Employee’s ongoing back issue was a significant factor in the decision to terminate the Employee’s employment and accordingly awarded the Employee $20,000.00 as a result.

Impact of Decision on Employers

While Ontario Courts have been permitted to award damages for breach of the Ontario Human Rights Code in Employment Law matters since the amendments were made to the legislation in 2008, the above decision is the first time that such an awarded has been made. As a result, the above decision should act as a stark reminder to Employers that such damages can be awarded in a wrongful dismissal matter and that guidance from experienced Employment Lawyers should be obtained prior to terminating an employee.

Impact of Decision on Employees

The above decision should also act as a reminder to employees that should they believe that their termination is not only wrongful, but also in breach of the Ontario Human Rights Code, a single action may be able to be initiated in the Ontario Superior Court of Justice to pursue all claimed damages instead of proceeding with two separate actions and incurring additional costs. Therefore, terminated employees should always consult with an experienced Employment Lawyer to ensure that their termination is properly analyzed, and that all appropriate damages are sought.

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