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News



February 18, 2015
Terminated LTD case leads to full reinstatement after 12 years

The Ontario Human Rights Tribunal and an Ontario court have ruled that a disabled woman should be reinstated to an equivalent position in her workplace after a 12-year absence.

The case involves a woman who worked for a large school board from 1988 to 2004 as a supervisor responsible for the removal of asbestos from the board’s properties.

In 2001, she developed anxiety disorders and severe depression that she attributed to the stress of being held personally responsible under Ontario’s Occupational Health and Safety Act for any damages resulting from the removal of asbestos from the workplace.

She went on disability leave in 2002.  In 2004, the board’s insurance carrier terminated the long-term disability payments after it concluded that she was capable of being gainfully employed.  The board subsequently ended her employment, stating that due to the restrictions imposed on her by her disability, there were no suitable positions available for her.

She then filed a complaint with the Human Rights Commission and initiated proceedings with the Ontario Human Rights Tribunal in 2009.

The case was not heard by the Tribunal until 2012.  

In reviewing the case, the Tribunal found that the board failed to find ways to accommodate the woman’s disability “actively, promptly and diligently.”  It found that the board did not explore measures such as volunteer work or work-hardening to help the woman to transition back to the workplace.  It also noted that it failed to provide her with documented proof of her essential duties of her job or to discuss return to work protocols with her.  It also failed to seek expert medical opinions on possible restrictions to her work.

Further investigation revealed that the board did not disclose that two other suitable positions were available at the time she was terminated.

Based on that, the Tribunal ruled that the board was unwilling to even attempt to accommodate the woman’s disability and that her later termination was a violation of the province’s human rights code.

The Tribunal ordered that the woman be reinstated to a position equivalent to what she held at the time of her termination.  It also allowed for a six-month training period.  Financially, it ordered the reinstatement of her wages, Canada Pension Plan contributions and out-of-pocket medical and dental expenses retroactive to June 23, 2003. In addition, it awarded $30,000 in damages.

It total, her award amounted to more than $500,000, plus a return to her workplace after a 12-year absence.

The case was appealed to the Ontario Divisional Court, which sided with the Tribunal’s ruling, noting that reinstatement is not unusual in human rights litigation.  It also stressed that the Human Rights Tribunal can order whatever measures necessary to support the human rights code.

The board has appealed to the Ontario Court of Appeal.  

For plan sponsors, this case should reinforce the requirement to strictly manage and document all aspects of disability cases, including measures taken to accommodate a disabled individual’s condition.  Support for the person, including reviewing their return to work requirements and restrictions, must occur promptly and be backed by appropriate medical advice.

As suggested in this case, an individual’s disability should not be used as a tool to terminate their services.  Court-ordered reinstatement to their former or an equivalent position is a real possibility even after an absence of a decade or longer.

Coughlin offers a full range of disability management services to plan sponsors.  For more information, contact Coughlin Managed Care Consultant Joe Zadzora at 613-231-2266, Extension 4256.

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