Has the genie escaped his bottle?

November 19, 2013 | Carol S. VandenHoek

The decision of Wilson v. Solis Mexican Foods Inc is the first Ontario Superior Court decision to award a dismissed employee damages for discrimination.  Since the amendments to the Human Rights Code (Ontario) in 2008 plaintiffs have the option of including in a civil action a claim for breaches of the Code, not as a stand alone remedy but together with other relief sought.  In the Wilson case the plaintiff sought wrongful dismissal damages and damages arising from discrimination under the Code due to a failure of the employer to accommodate her disability. 

While the employee was on leave due to back pain, the employer, citing a divestiture of part of their business, terminated the plaintiff without cause by providing her with two weeks’ pay in lieu of notice.  The plaintiff employee, age 54, held a middle management position involving modest responsibilities of approximately 18 months tenure. 

The sequence of events is important to review.  The employee was off for a short period of time.  The employer did not accept a graduated return to work plan presented a few weeks after the absence began, insisting that the employee be fully fit to return to work.  The return to work plan was presented after approximately a one month absence for back pain and included a doctor’s note supporting a graduated return to work plan over a two week period starting with half days and moving to full days.  The employer responded that the proposal was unacceptable and required the completion of a functional abilities form while also indicating that the employer required the employee to be capable of returning to full-time hours and full duties before returning to work.  The functional abilities form was completed in a timely manner and outlined accommodation requirements related to sitting, standing and walking.  A further response from the employer reiterated the requirement for the employee to return to work on a full-time and full duties basis.  At that point a further doctors’ note was provided by the employee citing an inability of the plaintiff to return to work at all for an additional period of approximately six weeks.  The termination notice was delivered shortly thereafter.

This back and forth will sound familiar to employers and to human resources practitioners.  A critical error by the employer was the insistence of a return to full-time work and full time duties which gave rise to findings of fact, namely a failure by the employer to offer accommodation and a failure to seemingly even consider accommodation.  In relation to the reason cited for the dismissal, reorganization related to divestiture of part of the business, the Trial Judge criticized the employer stating:

“If the divestiture was the real reason for the plaintiff’s termination, why did that transaction not feature, at all, in a single communication with the plaintiff before May 19, 2011?  Did it truly only realize the plaintiff was not needed post-closing?. No. The defendant’s position is contrary to the evidence and defies common sense.”

The Trial Judge found that three months was the reasonable notice period.  Further the Trial Judge found that the plaintiff was terminated in whole or in part because of her disability and awarded $20,000 in damages referencing the disingenuous actions of the employer both before and during the termination.  Of note this trial provided by way of a summary procedure with no oral evidence presented to the Trial Judge who noted that he was left “…feeling less than fully assisted from an evidentiary perspective.”

The handling of disability related matters continues to pose significant challenges for employers.  This case demonstrates the potential consequences for an employer who fails to consider accommodation principles and may encourage employee counsel to include and pursue similar claims in a more aggressive manner. 


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