COURTS AWARD HUMAN
RIGHTS DAMAGES IN
By Jonathan Pitblado,
J. Pitblado Law Office
A SUMMARY OF THE P WILSON V SOLIS FOODS CASE, 2013 ONSC 5799
This recent case appears to be the
first case in Ontario where a
court, as compared to the Ontario
Human Rights Tribunal, has
awarded Human Rights Code damages in
a wrongful dismissal case.
Those Human Rights Code damages
The court battlefield for Human Rights
Code damages was opened in the summer
of 2008 via amendments to the Human
Rights Code. Those amendments allowed
a plaintiff to claim damages for breach of
the Human Rights Code in addition to
wrongful dismissal damages.
THE GENERAL FACTS
Mrs. Wilson was a middle-aged lady with
a C.G.A. designation. She was originally
hired by the defendant to be an assistant
controller. She made $65,000.00 per annum
plus some fringe benefits.
After a brief time, she was given a lateral
transfer to the position of business analyst.
She had a fairly good performance review
in that new position.
She then developed some back problems
and disclosed them to the employer.
Senior management of the defendant
met within a week after the performance
review. The meeting notes showed the
plaintiff complaining about back issues
and her performance and long-term prospects
with the company were questioned.
Several months later, a generic medical
note from a family doctor was provided
for some time off. Then, soon thereafter,
the family doctor provided a note indicating
a gradual return to work of four hours
per day the first week, six hours per day
the week after and then, finally, eight hours
per day the week after that.
The employer provided a functional
abilities form for her doctor to complete.
It was completed and returned in a timely
way, and showed very few restrictions other
than a need for her to alternate sitting,
standing and walking.
The employer did not want her to return
to work until she was 100 per cent
healthy, as stated in its letters to her.
Mrs. Wilson’s family doctor then produced
a note indicating that she would
have to be off work completely for several
weeks in order to recuperate to 100
per cent functionality.
In the meantime, the employer was
planning to sell a division, and did so
while Mrs. Wilson was away from work.
The employer then informed Mrs. Wilson
by letter that her services were no longer
required as the sale of the division had
lessened their need for her.
The employer gave Mrs. Wilson two
weeks of E.S.A. termination pay. That
compensation made sense under the Employment
Standards Act, as she had been
employed for approximately 16 months.
No common law notice monies were advanced.
Mrs. Wilson admitted in her trial affidavits
that the loss of the division would
have dropped her workload, at least in the
short term, by 20 to 50 per cent.
The defense submitted that they let the
plaintiff go because of the sale of the division.
Thus, they argued, there should not be
any liability for Human Rights Code damages.
They did, however, admit to owing
some common law notice period damages.
The trial judge awarded normal wrongful
dismissal damages of three months’
income, minus the two weeks of E.S.A.
Photo by junial / Photos.com
HRPATODAY.CA ❚ JANUARY 2014 ❚ 17