



COURT OF APPEAL FOR ONTARIO

CITATION: Hamilton-Wentworth District School Board v. Fair,

2016 ONCA 421

DATE: 20160531

DOCKET: C60438

Laskin, Pardu and Roberts JJ.A.

BETWEEN

Hamilton-Wentworth District School Board

Applicant (Appellant)

and

Sharon Fair
,
Human Rights Tribunal of
    Ontario
and Kaye Joachim and Ontario Human Rights Commission

Respondents (
Respondents
)

Roy Filion and Mark Zega, for the appellant

Ed Canning, Wade Poziomka and Jennifer Zdriluk, for the
    respondent Sharon Fair

Margaret Leighton, for the respondent Human Rights
    Tribunal of Ontario

Insiya Essajee, for the intervenor Ontario Human Rights
    Commission

Heard: November 25, 2015

On appeal from the order of the Divisional Court (Justices
    Matlow, Whitaker and Ellies), dated September 29, 2014, with reasons reported
    at 2014 ONSC 2411, by way of judicial review of the decisions of Kaye Joachim,
    dated February 17, 2012 and March 14, 2013, with reasons reported at 2012 HRTO
    350 and 2013 HRTO 440.

Roberts J.A.:

Overview

[1]

This appeal concerns an employers duty to accommodate a disabled
    employee and the seldom-invoked remedy of reinstatement of an employee to her
    employment, under the Ontario
Human Rights Code
, R.S.O. 1990, c. H.19 (the
    
Code
).

[2]

The appellant, Hamilton-Wentworth District School Board (the School
    Board), submits that the Divisional Court erred in dismissing its application
    for judicial review of the Human Rights Tribunal of Ontarios (the Tribunal) decisions
    with respect to liability and remedy.

[3]

The Tribunal accepted the complaint by the respondent, Sharon Fair, and
    found that the School Board had discriminated against Ms. Fair by failing to accommodate
    her disability. As a remedy, among other relief, the Tribunal ordered Ms.
    Fairs reinstatement to employment with the School Board. The Divisional Court
    dismissed the School Boards application for judicial review.

[4]

The School Board argues that the Divisional Court erred in finding to be
    reasonable the Tribunals findings that there were positions available with the
    School Board in which Ms. Fair could and should have been placed as
    accommodation of her disability, and in ordering that Ms. Fair be reinstated to
    her employment with the Board after 14 years of absence.

[5]

For the reasons that follow, I see no error in the decision of the Divisional
    Court. In essence, the School Board is asking this court to retry the findings
    of fact that were made by the Tribunal, in the exercise of its specialized
    knowledge and discretion, and that were amply supported by the evidence. The
    Tribunals decision was reasonable and there is no basis for this court to
    interfere. I would therefore dismiss the appeal.

Background

[6]

Ms. Fair started her employment with the School Board in October 1988. In
    the seven years before taking a medical leave of absence, she occupied the
    position of Supervisor, Regulated Substances, Asbestos.

[7]

In the fall of 2001, Ms. Fair developed a generalized anxiety disorder, as
    a result of which she was hospitalized for almost a month. She was subsequently
    diagnosed with depression and post-traumatic stress disorder. This disability developed
    in response to the highly stressful nature of her job and her fear that, in
    making a mistake about asbestos removal, she could cause personal injury to
    others and be held personally liable for a breach of the
Occupational
    Health and Safety Act
, R.S.O. 1990, c. O.1.

[8]

In October 2001, Ms. Fair commenced an approved medical leave of absence
    from her employment. From March 2002 until April 2004, she received long-term
    disability (LTD) benefits from the Ontario Teachers Insurance Plan (OTIP),
    having met the standard of being totally disabled from performing the duties
    and responsibilities of her position.

[9]

In April 2003, Ms. Fair indicated that she wanted to return to work. Ms.
    Fairs OTIP consultant contacted the School Board to set up a meeting to
    discuss her return to work. The School Boards Disability Management Co-ordinator
    refused because she felt that she did not have enough information regarding Ms.
    Fairs restrictions and limitations to be able to discuss possible employment
    accommodations.

[10]

In June 2003, Ms. Fair began participating in a work-hardening schedule
    with the goal of returning to full-time employment. She made it clear that her
    participation in this program did not preclude her from accepting full-time
    employment as soon as it became available. In designing the work-hardening
    program, Ms. Fairs treating psychiatrist, Dr. Patricia Murphy, had indicated to
    the School Board that accommodations were to exclude work involving any
    personal liability, including, for example, overseeing construction or
    renovation projects. Ms. Fair participated in the program from June 2003 to January
    2004, volunteering with human resources.

[11]

There were full-time job openings for which the Tribunal found Ms. Fair ought
    to have been considered.

[12]

In June 2003, the School Board advertised a non-unionized Staff
    Development Supervisor position in the human resources department, the duties
    of which had previously been performed by another employee. Ms. Fair, that other
    employee, and others applied and were interviewed for the position. In August
    2003, the other employee was chosen as the successful candidate.

[13]

In July 2003, as part of a re-organization process of its plant
    department, the School Board redistributed the duties of a departing Area
    Supervisor.

[14]

In October 2003, Ms. Fair met with the Controller of the plant
    department and was informed that her medical condition precluded any
    accommodation within that department.

[15]

In November 2003, Ms. Fair requested more information about
    accommodation. In response, the Disability Management Co-ordinator advised that
    the School Board required clarification about Ms. Fairs restrictions and
    limitations.

[16]

In December 2003, Dr. Murphy provided the School Board with a medical
    update, advising that Ms. Fair could not return to her previous role for
    medical reasons and that she should look at positions that provided her with
    less exposure to the kind of stresses experienced in her previous role.

[17]

On December 15, 2003, Ms. Fair filed a human rights complaint, claiming
    that the School Board had discriminated against her under the
Code
by
    failing to accommodate her disability by placing her in a suitable alternate position.

[18]

In February 2004, the School Board requested that Ms. Fair attend an
    appointment with Dr. S.W. Dermer, a psychiatrist, to clarify and identify any
    restrictions or limitations that Ms. Fair might have and how best to
    accommodate her. In her March 1, 2004 instructing letter to Dr. Dermer, the
    School Boards Disability Management Co-ordinator stated that:

Sharon has a skewed view of entitlement and says we owe her a
    job and we are violating her human rights. I view Sharon as being extremely
    manipulative  if she believes you have something that can help her, she treats
    you well  otherwise.She can enhance details to attempt to sway your
    perspective. The rehab worker from OTIP has told me that she views Sharon as
    manipulative, difficult and single minded.

In closing, she directed Dr. Dermer to Please help
    identify REAL limitations/restrictions, fitness to return to work, separate
    medical from preference, etc.

[19]

Ms. Fairs eligibility for LTD benefits terminated in April 2004,
    because she was assessed as capable of gainful employment. She resumed sick
    leave benefits.

[20]

In May 2004, Dr. Dermer, who had examined Ms. Fair and consulted with
    her treating psychiatrist, Dr. Murphy, provided the School Board with his
    opinion that Ms. Fair suffers from a psychiatric impairment which renders her
    permanently disabled from her own occupation as a Supervisor, Regulated
    Substances. He indicated his agreement with Dr. Murphys opinion of Ms. Fairs
    restrictions and limitations, specifically:

Ms. Fair would not be able to function in a job which entailed
    responsibility for health and safety issues, nor any duties which would leave
    her at risk for personal liability. Outside these limitations and restrictions,
    Ms. Fair is otherwise capable of gainful employment, as she is not currently
    deemed to suffer from a psychiatric impairment sufficient to render her totally
    disabled.

[21]

The School Board did not identify another suitable position for Ms.
    Fair. On July 8, 2004, the School Board terminated her employment and offered
    her a severance package.

[22]

On November 24, 2004, Ms. Fair filed a further complaint with the
    Ontario Human Rights Commission, claiming that the Board had breached the
Code
by terminating her employment.

[23]

On July 4, 2006, Ms. Fair commenced a civil action claiming wrongful
    dismissal. The civil action remains active but was stayed pending the outcome
    of the human rights complaint process.

[24]

Following amendments to the
Code
, Ms. Fair transferred her case
    to the Human Rights Tribunal. In May 2009, in these new proceedings, Ms. Fair
    for the first time specifically requested reinstatement as a remedy.


Decisions of the Human Rights Tribunal

(i)

Liability

[25]

The Tribunal released its decision with respect to liability on February
    17, 2012. The Tribunal concluded that the Board discriminated against Ms. Fair
    on the basis of disability by failing in its duty to accommodate her beginning
    in April 2003.

[26]

The Tribunal found that Ms. Fair had fulfilled her obligation to
    co-operate fully in the accommodation process, including staying in constant
    communication with the School Board and providing her consent to the release of
    medical information.

[27]

By contrast, the Tribunal concluded that the School Board had failed to
    actively, promptly, and diligently canvas possible solutions to [Ms. Fairs]
    need for accommodation. That conclusion was based on a number of findings.

[28]

First, the Tribunal looked to the actions and inactions of the School
    Boards Disability Management Co-ordinator. Those included, among others: the
    failure to adopt an active role in canvassing all possible accommodation
    solutions from the outset; the failure to meet with the vocational
    rehabilitation consultant from Ms. Fairs long-term disability insurer to
    explore volunteer or work-hardening activity; and the attempt to influence the
    School Boards medical expert to conclude that Ms. Fair was not worthy of
    accommodation.

[29]

Second, the Tribunal considered the School Boards refusal to
    accommodate Ms. Fairs placement in available positions either temporarily or
    permanently. Specifically, the Tribunal held that the School Board could have
    accommodated Ms. Fair without undue hardship by placing her in the positions of
    Area Supervisor in the plant department and Staff Development Supervisor in the
    human resources department.

[30]

The Tribunal found that the budget documents for 2003/2004 reflected
    that there were surplus full-time Area Supervisor positions in the plant
    department, Ms. Fairs former department. Further, the Tribunal concluded that
    there was a genuine vacancy for the position of Staff Development Supervisor in
    the human resources department, where Ms. Fair had been volunteering during her
    work-hardening program, because the School Board had posted the position. It
    found that the position would have offered an opportunity for a lateral
    transfer without the displacement of any other party.

[31]

Finally, the Tribunal found a failure to accommodate on the part of the
    School Board when it neglected to give any consideration to Ms. Fairs ability
    to perform in alternate employment opportunities following the receipt of its
    experts report in May 2004, and instead terminated Ms. Fairs employment.


(ii)

Remedy

[32]

On March 14, 2013, the Tribunal released its decision on remedy and
    ordered, among other relief, the reinstatement of Ms. Fair to her employment
    with the School Board. In particular, the Tribunal concluded that, as soon as
    reasonably possible, Ms. Fair was to be reinstated to a suitable position for
    which she had the basic general qualifications, equivalent to the level that
    she had been at when last employed by the School Board. The position was not to
    involve exposure to personal liability for health and safety similar to the
    potential liability caused by working with asbestos. The School Board was also
    required to provide up to six months of training to prepare Ms. Fair for the
    position.

[33]

In ordering reinstatement, the Tribunal rejected the School Boards
    argument that the passage of time precluded or rendered unfair Ms. Fairs
    return to employment with the School Board. Specifically, the Tribunal noted
    that the delay in processing Ms. Fairs human rights complaint was not her
    fault and that Ms. Fairs assiduous efforts to find and engage in employment
    over the years indicated that she was still capable of returning to full-time
    employment.

Decision of the Divisional Court

[34]

On September 29, 2014, the Divisional Court dismissed the School Boards
    application for judicial review of the Tribunals decisions. Relevant to the
    issues raised and pursued on appeal, the Divisional Court upheld as reasonable
    the Tribunals findings that the School Board had failed to accommodate Ms.
    Fair to the point of undue hardship and that reinstatement was an appropriate
    remedy in the circumstances.

[35]

With respect to liability, the Divisional Court held that the Tribunals
    finding that the School Board never had any real intention to accommodate Ms.
    Fair, including its criticism of the School Boards Disability Management
    Coordinators efforts to undercut Ms. Fairs and her insurers efforts to
    obtain less demanding work, was amply supported by the evidence to which the
    Vice-Chair referred, particularly the documentary evidence.

[36]

On the issue of reinstatement, the Divisional Court found the Tribunals
    reasons to be intelligible, transparent and with justification. The
    Divisional Court recognized the broad remedial authority of the Tribunal to
    order reinstatement and, while acknowledging the relative uncommonness of the
    remedy in human rights litigation, noted that it was not unusual in labour
    relations litigation under the provisions of a collective agreement, where one
    might be dealing with exactly the same issues. The Divisional Court also
    agreed with the Tribunals conclusion that the passage of time did not render
    reinstatement inappropriate because the goal of the remedial provisions of the
Code
ought not to be thwarted because of the passage of time that was
    largely beyond the control of [Ms.] Fair.

[37]

On January 12, 2015, the Divisional Court dismissed Ms. Fairs motion to
    correct clerical errors in its September 29, 2014 decision, leaving the issue
    to this court.

Issues

[38]

The School Board raises the following issues on appeal:

(i)

Is the Divisional Courts
    apparent error in incorrectly referring to the position of Area Supervisor
    rather than Staff Development Supervisor a clerical or substantive error and to
    what extent does that error affect the issues on appeal?

(ii)

Did the Divisional Court err in holding
    that there was nothing unreasonable in the Tribunals findings on the issue of
    accommodation and that Ms. Fair should have been appointed to the position of
    Area Supervisor or Staff Development Supervisor?

(iii)

Did the Divisional Court err in holding
    that the Tribunals finding that the School Board failed to accommodate Ms.
    Fair to the point of undue hardship was reasonable?

(iv)

Did the Divisional Court err in
    holding that the Tribunals decision with respect to remedy was reasonable?


Analysis

Standard of appellate review

[39]

On an appeal such as this one, the standard of review on findings of
    fact, findings of mixed fact and law, and the exercise of remedial discretion
    is reasonableness.

[40]

This court recently explained the reasonableness standard in
Taylor-Baptiste
    v. Ontario Public Service Employees Union
, 2015 ONCA 495, 126 O.R. (3d)
    481, at para. 42, as follows:

The reasonableness standard of review recognizes that certain
    questions coming before administrative tribunals do not lend themselves to only
    one particular result. Consequently, reasonableness is concerned with both the
    existence of justification, transparency and intelligibility of the
    decision-making process, as well as with whether the decision falls within a
    range of possible, acceptable outcomes which are defensible in respect of the
    facts and law. Where the reasonableness standard applies to an issue, the
    person seeking judicial review must show that the tribunal could not reasonably
    have arrived at the decision it reached. [Footnotes omitted.]

[41]

Moreover, under the reasonableness standard, as also articulated in
Taylor-Baptiste
,
    at para. 40, the decisions of the Tribunal on determinations of fact and the
    interpretation and application of human rights law are entitled to the highest
    degree of deference having regard to the Tribunals expertise and
    specialization.

(i)

Is the Divisional Courts apparent error in incorrectly referring to the

position
    of Area Supervisor rather than Staff Development Supervisor

a
    clerical or substantive error and to what extent does that error

affect
    the issues on appeal?

[42]

The Tribunal found that the School Board could have accommodated Ms.
    Fair in the positions of Area Supervisor in the plant department and Staff
    Development Supervisor in the human resources department of the School Board.

[43]

The Divisional Court upheld the Tribunals findings on accommodation. However,
    the Divisional Court mistakenly referred to the position of Area Supervisor,
    rather than Staff Development Supervisor, in particular, as follows:

We can see nothing unreasonable in the Vice-Chairs findings on
    the issue of accommodation. While it is true, as the Board indicates, that it
    had identified the person who should be appointed to the position of Area
    Supervisor, that position was vacant. If Fair had been assigned to the
    position, no other person would require displacement. It is difficult to
    conclude that Fair was accommodated to the point of undue hardship where she
    was not assigned to a vacant position which would have accommodated her
    disability  and this is within a pool of hundreds of employees for a large
    public sector employer.

[44]

The School Board argues that this error indicates that the Divisional
    Court misconstrued material evidence and the parties submissions. As a result,
    this mistake rendered erroneous its conclusion that the Tribunals decision on
    accommodation was reasonable.

[45]

I would not give effect to this ground of appeal. It is clear from the
    Divisional Courts reasons that it was aware that there were two distinct
    positions in issue with respect to the question of Ms. Fairs accommodation: see,
    in particular, para. 28 of its reasons. Moreover, the balance of para. 39 of
    its reasons demonstrates that the Divisional Court considered the relevant facts
    and findings made by the Tribunal with respect to the position of Staff
    Development Supervisor and the accommodation issues related to that position,
    notwithstanding that it misstated the name of the position.

[46]

The Divisional Courts error in misstating the name of the position was
    clerical and did not affect its decision.

(ii)

Did the Divisional Court err in holding that the Tribunals findings on accommodation
    were reasonable and that Ms. Fair should have been appointed to the position of
    Area Supervisor or Staff Development Supervisor?

[47]

The School Board submits that this ground of appeal involves errors by
    the Tribunal in its interpretation of discrimination and/or the duty to
    accommodate. In my view, these submissions are no more than an attempt to
    re-argue findings of fact reasonably made by the Tribunal.

[48]

In order to put the School Boards submissions and the Tribunals
    findings into the appropriate context, it is useful at this point to set out
    some general principles about the employers duty to accommodate an employees
    disability under the
Code
. I start with the Supreme Court of Canadas
    articulation of the purpose of the duty to accommodate set out in
Hydro-Québec
    v. Syndicat des employé-e-s de techniques professionnelles

et de
    bureau dHydro-Québec, section locale 2000 (SCFP-FTQ)
, 2008 SCC 43, [2008]
    2 S.C.R. 561, at para. 14:

As LHeureux-Dubé J. stated, the goal of accommodation is to
    ensure that an employee who is able to work can do so. In practice, this means
    that the employer must accommodate the employee in a way that, while not
    causing the employee undue hardship, will ensure that the employee can work. The
    purpose of the duty to accommodate is to ensure that persons who are otherwise
    fit to work are not unfairly excluded where working conditions can be adjusted
    without undue hardship.

[49]

Section 5 of the
Code
confirms the right of every person to
    equal treatment in the employment relationship without discrimination or
    harassment because of certain specified attributes, such as disability, which
    are listed in that section. Under s. 10 (1) of the
Code
, disability is
    defined to include a condition of mental impairment or a mental disorder.

[50]

Section 17 of the
Code
is an interpretative provision that deals
    specifically with the duty to accommodate in the case of individuals who are
    disabled:

17. (1) A right of a person under this Act is not infringed for
    the reason only that the person is incapable of performing or fulfilling the
    essential duties or requirements attending the exercise of the right because of
    disability.

(2) No tribunal or court shall find a person incapable unless
    it is satisfied that the needs of the person cannot be accommodated without
    undue hardship on the person responsible for accommodating those needs,
    considering the cost, outside sources of funding, if any, and health and safety
    requirements, if any.

[51]

Failing to accommodate a persons disability-related needs is therefore
    a violation of s. 5 of the
Code
, which prohibits discrimination
    against a person because of disability, if that persons needs can be
    accommodated without undue hardship; the failure to take the appropriate steps
    to assess those needs is a violation of s. 5 of the
Code
:
Lee v.
    Kawartha Pine Ridge District School Board
, 2014 HRTO 1212, at para. 95;
ADGA
    Group Consultants Inc. v. Lane
(2008), 91 O.R. (3d) 649 (Div. Ct.), at
    paras. 107, 113.

[52]

The assessment of a persons disability-related needs and the
    appropriate accommodation to be made is a highly individualized process. As the
    Supreme Court of Canada observed in
British Columbia (Public Service
    Employee Relations Commissions) v. B.C.G.S.E.U.
, [1999] 3 S.C.R. 3, at
    para. 64:

Courts and tribunals should be sensitive to the various ways in
    which individual capabilities may be accommodated. Apart from individual
    testing to determine whether the person has the aptitude or qualification that
    is necessary to perform the work, the possibility that there may be different
    ways to perform the job while still accomplishing the employers legitimate
    work-related purpose should be considered in appropriate cases. The skills,
    capabilities and potential contributions of the individual claimant and others
    like him or her must be respected as much as possible. Employers, courts and
    tribunals should be innovative yet practical when considering how this may best
    be done in particular circumstances.

[53]

It is the employers onus to establish that it cannot accommodate the
    employees disability-related needs without experiencing undue hardship:
B.C.G.S.E.U.
,
    at para. 62. Undue hardship is not defined under the
Code
. Its
    interpretation has been the subject of much judicial consideration. In
Central
    Alberta Dairy Pool v. Alberta (Human Rights Commission)
, [1990] 2 S.C.R.
    489, at pp. 520-21, the Supreme Court of Canada provided the following guidance:

I do not find it necessary to provide a comprehensive
    definition of what constitutes undue hardship but I believe it may be helpful
    to list some of the factors that may be relevant to such an appraisal. I begin
    by adopting those identified by the Board of Inquiry in the case at
    barfinancial cost, disruption of a collective agreement, problems of morale of
    other employees, interchangeability of work force and facilities. The size of
    the employers operation may influence the assessment of whether a given
    financial cost is undue or the ease with which the work force and facilities
    can be adapted to the circumstances. Where safety is at issue both the
    magnitude of the risk and the identity of those who bear it are relevant
    considerations. This list is not intended to be exhaustive and the results
    which will obtain from a balancing of these factors against the right of the
    employee to be free from discrimination will necessarily vary from case to
    case.

[54]

In the present case, the evidence of both Ms. Fairs treating
    psychiatrist and the School Boards expert was that Ms. Fair had developed a
    psychiatric impairment that was caused by the stress of her former position. They
    agreed that her disorder disabled her from her former position. In particular,
    they opined that her disability prevented her from performing those essential
    duties of her former position that entailed responsibility for health and
    safety issues or that would leave her at risk for personal liability to the same
    extent as under that position. There is no dispute that Ms. Fairs psychiatric
    impairment is recognized as a disability for the purposes of the
Code
.
    As a result, the School Boards duty to accommodate Ms. Fair without undue
    hardship was triggered. These are the Tribunals findings. There is no error in
    these findings.

[55]

I now turn to consider the question of whether the Tribunal erred in
    finding that Ms. Fair could have been accommodated without undue hardship. The
    onus was on the School Board to demonstrate that it could not accommodate Ms.
    Fair without undue hardship.

Ms. Fairs capacity to return to full-time
    employment

[56]

The School Board takes issue with the Tribunals finding that Ms. Fair
    was capable of returning to full-time employment by April 2003. In essence, it
    argues that Ms. Fair was not medically cleared to return to full-time
    employment. Further, the School Board maintains that Ms. Fairs medical
    restrictions precluded her from working in a supervisory capacity because any
    supervisory position with the Board carries the potential for personal
    liability.

[57]

I would not accept these submissions. It was open to the Tribunal on the
    evidence before it to conclude that Ms. Fair could return to work full-time in
    a supervisory position in 2003 and 2004. The Tribunal was entitled to accept
    Ms. Fairs oral testimony and her email correspondence with the School Board,
    indicating her willingness and readiness to return to full-time employment. The
    work-hardening plan specifically anticipated a change in Ms. Fairs status in
    that the plan could change as required throughout the rehabilitation process
    and [would] be subject to further review. There were also the opinions of Ms.
    Fairs treating psychiatrist and the School Boards own expert that Ms. Fair
    was capable of returning to full-time employment. Indeed, it was as a result of
    the treating psychiatrists medical opinion that OTIP determined that Ms. Fair
    was no longer entitled to receive LTD benefits.

[58]

Moreover, in my view, the School Board too narrowly interprets the
    medical opinions to indicate that Ms. Fair was unable to work in any
    supervisory position because of potential liability and responsibility for
    safety issues. It was open to the Tribunal to construe the medical opinions as
    confining Ms. Fairs medical restrictions to supervisory positions involving
    the same level of personal liability as her previous position. Certainly there
    was no evidence that the positions of Area Supervisor or Staff Development
    Supervisor involved the same risk of personal liability as Ms. Fairs previous
    position.

Failure to appoint Ms. Fair to the position of Area
    Supervisor or Staff Development Supervisor

[59]

The appellant further submits that the Tribunal erred by finding that
    the School Board had failed to accommodate Ms. Fair by not appointing her in
    the summer of 2003 to the position of Area Supervisor in the plant department
    or Staff Development Supervisor in the human resources department. The School
    Board argues that the Tribunals liability decision creates new and unreasonable
    standards of accommodation because it requires an employer to create a surplus
    position or displace an incumbent employee to accommodate a disabled employee. Consequently,
    the appellant argues, the Divisional Court erred by finding the Tribunals decision
    to be reasonable.

[60]

I would not give effect to these submissions.

[61]

As I explain below, the Tribunal made factual findings that there would
    have been no need for the School Board to create a surplus position, as the
    financial resources existed for the Area Supervisor position, or to displace an
    incumbent employee, as the Staff Development Supervisor position was vacant.

[62]

The Tribunal did not create a new standard for accommodation but
    followed established principles. Specifically, the Tribunals decision is in
    keeping with the Supreme Court of Canadas decision in
Hydro Québec
. In
    that case, at para. 17, the court articulated an employers duty, short of undue
    hardship, to arrange the employees workplace or duties to enable the employee
    to work, as follows:

Because of the individualized nature of the duty to accommodate
    and the variety of circumstances that may arise, rigid rules must be avoided. If
    a business can, without undue hardship, offer the employee a variable work
    schedule or lighten his or her duties  or
even authorize staff transfers
 to ensure that the employee can do his or her work, it must do so to
    accommodate the employee. [Emphasis added.]

[63]

As the Tribunal correctly noted, the School Boards own policy on the
    Accommodation of Personnel recognized the principle that reasonable
    accommodation of a disabled employee may in some circumstances require the
    transfer of the employee to another position, as follows:

If an employee cannot perform the essential duties in his/her
    existing position, accommodation may be made in other positions. The respondent
    will consider the following factors in this process: seniority, availability,
    qualifications, and legislative or contractual obligations.

[64]

Consequently, the Tribunals conclusion that the School Board failed to
    accommodate Ms. Fairs disability was fact-driven and one that it was entitled
    to make based on the evidence before it.

Area Supervisor position

[65]

The School Board submits that, to have placed Ms. Fair into an Area
    Supervisor position in the summer or fall of 2003, it would have been required
    to create a position that was not needed and one that Ms. Fair had not
    indicated that she wanted or that she was capable of performing.

[66]

I would not accept these submissions. The Area Supervisor position was
    in the plant department where Ms. Fair formerly worked for over seven years. At
    that time, the plant department was in the process of re-organization and it
    was anticipated that several more Area Supervisors would be hired. The School Board
    ultimately decided not to fill these positions because of budgetary restraints but
    instead redistributed the duties of those positions among existing employees.

[67]

However, there was no evidence that the School Board did not have the financial
    resources, even during a period of fiscal restraint, to fill the position of
    Area Supervisor, or that it would have caused undue hardship to do so. On the
    contrary, as the Tribunal noted, the School Boards 2003/2004 budget provided
    for this position. Moreover, as indicated by Ms. Fair in her June 2003 email to
    the Disability Management Co-ordinator, she wanted to be considered for opportunities
    within the plant department. However, the Controller of the plant department
    refused to consider her for any position other than her previous position.

[68]

As a result, there is no basis to interfere with the Tribunals factually-based
    conclusion that the School Board could have placed Ms. Fair in the position of
    Area Supervisor in the plant department.

Staff Development Supervisor position

[69]

The School Board argues that the Tribunal misapprehended the evidence
    because there was no vacancy in this human resources position: the position had
    been temporarily occupied by another employee and continued to be occupied by
    her when Ms. Fair was reporting to her during her rehabilitation period. There
    was no issue that the other employee was more qualified for the position than
    Ms. Fair. According to the School Board, placing Ms. Fair into the position
    would have required the School Board to displace the other employee, which
    would have created undue hardship.

[70]

The School Boards arguments ignore evidence that the Tribunal was
    entitled to accept. First, as the Divisional Court agreed, the position was
    vacant. The other employee was not an incumbent in the position. If she had
    been, the School Board would not have been obliged to post the position to
    allow for competition in accordance with its own policy. The fact that there
    was a competition meant that there was no certainty that the other employee
    would be the successful applicant. Moreover, the fact that the School Board
    interviewed Ms. Fair and that she was one of the four applicants on the short
    list signified that Ms. Fair must have had more than the minimum qualifications
    for the position. Finally, there was no evidence that the other employees
    displacement from the position would have caused undue hardship to her, any
    other employee, or to the School Board.

[71]

The School Board also submits that there is no authority for the
    proposition that, in order to accommodate someone with a disability, that
    person should be given preference over someone who is a legitimate contender and
    the more qualified candidate for an employment position.

[72]

The School Boards argument misconstrues an employers duty to
    accommodate.

[73]

It is true that an employer has no obligation to place a disabled
    employee into a position for which he or she is not qualified: see, for
    example,
Ellis v. General Motors of Canada Ltd.
, 2011 HRTO 1453, at
    para. 28;
United Food and Commercial Workers Union, Local 1000A v.
    Kretschmar Inc. (MacEachern Grievance)
(2004), 129 L.A.C. (4th) 68, at
    paras. 7, 13-14, 21.

[74]

However, to fulfil its duty to accommodate an employees disability, an
    employer may be required in an appropriate case to place a disabled employee
    into a position for which he or she is qualified but not necessarily the most
    qualified.

[75]

For example, in
Re Union Carbide Canada Ltd. and E.C.W.U., Loc. 593
(1991), 21 L.A.C. (4th) 261, the arbitrator dismissed the grievance of an
    employee. The grievor was displaced by another employee who had been off work
    on a compensable injury and was not capable of performing his old job. The
    grievor had greater seniority than the returning employee. Nevertheless, the
    returning employee, who was capable of performing the position, was awarded the
    position because the employers obligation to accommodate under the
Code
prevailed over the seniority rights of the grievor.

[76]

The Divisional Court held that the Tribunals decision was based on the
    evidence before it and was not unreasonable. I would agree. The Tribunals
    decision is entitled to deference and there is no basis to interfere with it.

(iii)

Did the Divisional Court err in holding that the Tribunals finding that
    the School Board failed to accommodate Ms. Fair to the point of undue hardship
    was reasonable?

[77]

The School Board submits that the Tribunal erred in finding that any
    procedural inadequacies in the accommodation process followed by the School
    Board amounted to a breach of the
Code
. It argues that its reasonable
    compliance with the rehabilitation plan, in the absence of specific medical
    clearance for Ms. Fairs return to work, was sufficient to comply with its
    substantive obligations under the
Code
. It was only required to
    consider available positions after Ms. Fair had been medically precluded from
    returning to her original position, or had the rehabilitation plan been
    amended.

[78]

The School Board maintains that the Tribunal failed to identify any
    available position within Ms. Fairs restrictions at the time of the
    termination of her employment or in the foreseeable future. As a result, if it
    had not found that she should have been placed in either of the two positions
    discussed above, the Tribunal would not have found that the School Board had
    failed to accommodate Ms. Fair.

[79]

I would not accept these submissions. They essentially boil down to a
    challenge of the reasonableness of the Tribunals finding that the School Board
    failed to accommodate Ms. Fair to the point of undue hardship.

[80]

In the present case, it was open to the Tribunal on the evidence before
    it to find that Ms. Fair suffered from a disability that prevented her from
    performing or fulfilling the essential duties or requirements of her former
    position. This finding then engaged s. 17 of the
Code
, which required
    the School Board to accommodate Ms. Fair to the point of undue hardship.

[81]

I would agree with the School Boards submission that s. 17 of the
Code
does not impose a requirement on an employer to be perfect or allow the
    Tribunal to engage in speculation about what positions could potentially be
    available or performed by the disabled employee just because the accommodation
    process followed was not ultimately successful.

[82]

However, that is not what happened here. Section 17 of the
Code
obligated the School Board to accommodate Ms. Fairs needs to the point of
    undue hardship. This means that the School Board was required to take
    reasonable steps to accommodate Ms. Fair. Such reasonable steps, as the
    Tribunal explained, included altering her previous position or looking for
    alternate positions if the previous one could not be altered in order to
    accommodate her without undue hardship. As the Tribunal found, the School Board
    failed to do so.

[83]

As the Divisional Court explained, the Tribunal found that the School
    Board never had any real intention to accommodate [Ms. Fair]. Rather, the
    School Boards position from the beginning was that Ms. Fair was restricted
    from employment in all supervisory positions and, therefore, [it would] not
    accommodate her even if one was available.

[84]

It was open to the Tribunal to conclude that the School Board had failed
    to accommodate Ms. Fairs needs without undue hardship. As the Divisional Court
    noted, the Tribunal implicitly held that the duty to accommodate was not put on
    hold during the work-hardening program. The Tribunal also held that the School
    Board had a duty to obtain the medical evidence necessary to accommodate Ms.
    Fair, that Ms. Fair was willing to provide this information, and that the
    School Board had not fulfilled this duty.

[85]

The Tribunal fairly observed that the medical evidence required
    clarification concerning Ms. Fairs restrictions and that, as Dr. Dermer stated
    during his evidence, it would have been a simple thing for the School Board to
    clarify those restrictions with its own expert. There was no evidence that the
    School Board made any attempt to clarify Ms. Fairs restrictions with its own
    expert or consider alternate positions during the two months following receipt
    of its experts report in May 2004, confirming that Ms. Fair was capable of
    gainful employment, and its termination of Ms. Fairs employment in July 2004.

[86]

Overall, as the Divisional Court held, the Tribunals finding that the
    School Board failed to accommodate Ms. Fair to the point of undue hardship was
    reasonable. I would agree. There is no reason to interfere.

(iv)

Did the Divisional Court err in holding that the Tribunals decision
    with respect to remedy was reasonable?

[87]

The School Board submits that because Ms. Fair did not initially ask to
    be reinstated and did not request that remedy until the new tribunal and
    transition process were in force, she was precluded from receiving this remedy
    from the Tribunal.

[88]

I do not agree with these submissions. As the School Board concedes,
    under the former system, complainants did not have to specify remedies. When
    she transferred her complaint in 2009, Ms. Fair was entitled to request this
    remedy.

[89]

Further, the School Board submits that the remedy of reinstatement is
    unreasonable, unprecedented and disproportionate after a delay of so many years
    and in light of the failure of the Tribunal to identify any available position
    to which Ms. Fair could return. It also argues that the Divisional Court erred
    in drawing a comparison between reinstatement in human rights litigation and
    labour relations litigation.

[90]

I would not accept these arguments.

[91]

First, while rarely used in the human rights context, the remedy of
    reinstatement clearly falls within the Tribunals discretion to order under s.
    s. 45.2(1) of the
Code
, as follows:

45.2 (1) on an application under
    section 34, the Tribunal may make one or more of the following orders if the
    Tribunal determines that a party to the application has infringed a right under
    Part I of another party to the application:



3. An order directing any party to
    the application to do anything that, in the opinion of the Tribunal, the party
    ought to do to promote compliance with this Act.

[92]

As the Divisional Court correctly noted, The
Code
provides the
    Tribunal with broad remedial authority to do what is necessary to ensure
    compliance with the
Code
.

[93]

The determination of remedy falls within the specialized expertise of
    the Tribunal, and as such is accorded a high degree of deference:
Phipps v.
    Toronto Police Services Board
, 2010 ONSC 3884, 325 D.L.R. (4th) 701 (Div.
    Ct.), at para. 42, affd 2012 ONCA 155, 347 D.L.R. (4th) 616.

[94]

Further,
Ford Motor Co. of Canada Ltd. v. Ontario (Human Rights
    Commission)
(2001), 209 D.L.R. (4th) 465, where this court set aside the
    reinstatement of an employee, is distinguishable from the present case.
    Although in
Ford Motor
, this court pointed to the time that had passed
    since the employees dismissal, it also relied on the internal inconsistencies
    within the Boards decision and the lack of consideration of an arbitrators
    prior decision upholding the discharge: see paras. 68-73.

[95]

The passage of years is not, by itself, determinative of whether
    reinstatement is an appropriate remedy. Rather, the decision as to whether to
    order reinstatement is context-dependent. In the present case, the Tribunal
    found none of the barriers to reinstatement that foreclosed reinstatement in
    the
Ford Motor
case. Specifically, Ms. Fairs employment relationship
    with the School Board was not fractured and the passage of time had not
    materially affected her capabilities.

[96]

Moreover, the Divisional Courts reference to the labour relations
    context was not unreasonable or unusual. For example, the Tribunal in
Krieger
    v. Toronto Police Services Board
, 2010 HRTO 1361, espoused similar
    principles. This case involved an application by a terminated employee for
    reinstatement following alleged discrimination. In examining the issue of
    reinstatement, the Tribunal noted, at para. 182:

While reinstatement orders are rarely requested or ordered in
    human rights cases, they are normally ordered in arbitral cases where a
    violation of a grievors rights has been found, unless there are concerns that
    the employment relationship is no longer viable
A.U.P.E. v. Lethbridge
    Community College
, [2004] 1 S.C.R. 727, 2004 SCC 28 (S.C.C.), at para. 56.
    The goal of human rights legislation, which is remedial in nature, is to put
    the applicant in the position that he or she would have been in had the discrimination
    not taken place. See
Impact Interiors Inc. v. Ontario (Human Rights
    Commission)
(1998), 35 C.H.R.R. D/477 (Ont. C.A.). Where viable,
    reinstatement is sometimes the only remedy that can give effect to this
    principle.

[97]

Finally, there was no error in the Tribunals requiring the School Board
    to determine the appropriate position. The School Board remains in the best
    position to determine what positions are available or could be made available,
    and the adjustments that it will be required to make in order to accommodate
    Ms. Fair.

Disposition

[98]

For these reasons, I would dismiss the appeal.

[99]

If the parties cannot agree on the disposition of costs here and before
    the Divisional Court, they may make brief written submissions of no more than
    two pages as follows: the respondents shall deliver their submissions by June
    14, 2016; and the appellant shall deliver its submissions by June 24, 2016.

Released: May 31, 2016

L.B. Roberts J.A.

I agree John Laskin
    J.A.

I agree G. Pardu
    J.A.


