The intersection of employment law and human rights law can be a complex and often treacherous area for employers. A recent decision by the Canadian Human Rights Tribunal (CHRT), Todd v. City of Ottawa, is a stark reminder of the importance of understanding the boundaries of permissible employer conduct, particularly when dealing with employees with disabilities. This case delves into the critical issue of causation in discrimination cases, specifically in the context of termination of employment. For Ontario employers and employees alike, this decision offers valuable insights into applying human rights principles in the workplace.
The Two-Phased Approach: Liability First, Remedies Second
In Todd, the Tribunal adopted a bifurcated hearing process. The initial phase focused solely on determining whether the employer, OC Transpo, had discriminated against the complainant employee. Recognizing the potential for significant costs and resources associated with assessing remedies like lost pension entitlements, the Tribunal wisely decided to address the issue of liability first. Only if discrimination were found would a second phase be convened to delve into the appropriate remedies.
In a decision rendered on August 13, 2020, the Tribunal (the “Liability Decision“) concluded that while the employer did not discriminate against the employee by placing him on a continuing employment agreement, it did engage in discrimination when it included his overall history of absenteeism without properly considering disability-related absences as one of the reasons for his termination. This Liability Decision was subsequently upheld by the Federal Court.
The Motion to Limit Remedies: OC Transpo’s Argument
Following the affirmation of liability, the employer brought a motion to restrict the remedies available to the employee. Their central argument was that the Tribunal’s own findings in the Liability Decision precluded an order for lost wages or reinstatement. The employer contended that the causal link between the discriminatory conduct (improperly considering disability-related absences in the termination rationale) and the employee’s job loss was broken by the employee’s own actions – specifically, his repeated breaches of the continuing employment agreement.
The employer argued that even without considering the discriminatory factor, the employee would have been terminated due to his non-compliance with the agreement. Furthermore, the employer suggested that reinstating the employee would place him in a better position than he would have been in had the discriminatory conduct not occurred, effectively shielding him from the consequences of his own breach. They also raised concerns about the breakdown of the employment relationship as a potential barrier to reinstatement.
The Employee’s Counter-Argument: The Right to Be Made Whole
The employee argued that the finding of discriminatory conduct directly related to his termination entitled him to be put back in the position he would have been in had the discrimination not occurred. This, he asserted, included reinstatement to his former position at OC Transpo and compensation for lost wages, salary, benefits, and pension entitlements from the date of his termination.
The employee argued that a causal connection existed between the discriminatory conduct and his termination, suggesting there was no absolute certainty he would have been terminated “but for” the discriminatory consideration of his overall absenteeism. He cited previous Tribunal decisions where lost wages were awarded even when discriminatory reasons were only part of the rationale for termination. The employee also suggested that the employee’s motion was an attempt to re-litigate the Liability Decision already upheld by the Federal Court.
The Tribunal’s Decision: Causation is Key
Ultimately, the Tribunal granted the employer’s motion, significantly limiting the scope of remedies available to the employee. The core of the Tribunal’s reasoning rested on the fundamental legal principle of causation.
Under section 53(2) of the Canadian Human Rights Act, the Tribunal’s role is to provide remedies for established discrimination and to prevent future occurrences. This includes putting the employee in the position they would have been in had the discrimination not occurred (essentially, “making them whole”). However, this remedial power is contingent upon the employee demonstrating a causal link between the discriminatory conduct and the loss for which they seek a remedy. This “but for” test, as articulated by the Supreme Court of Canada in Clements v. Clements, requires the employee to prove, on a balance of probabilities, that the injury (in this case, the loss of employment and associated financial losses) would not have occurred “but for” the defendant’s discriminatory act.
The Tribunal emphasized that while human rights tribunals operate within a distinct legal framework, the requirement of a causal connection between the discriminatory conduct and the claimed loss is well-established in both the Canadian Human Rights Act and Tribunal jurisprudence. This analysis of causation is intrinsically linked to the remedial objective of restoring the employee to their pre-discrimination position.
Why the Employee Could Not Meet the Causation Standard
In applying this principle to the employee’s case, the Tribunal highlighted its factual findings in the Liability Decision. Crucially, the Tribunal had already determined that the employer had valid, non-discriminatory grounds for terminating the employee based on his repeated breaches of the continuing employment agreement. The Tribunal had explicitly found that it was not discriminatory for the employer to terminate the employee for these breaches and that the employer had decided to terminate him before introducing the additional, discriminatory rationale of his overall absenteeism.
Therefore, even though the employer did engage in discriminatory conduct by considering the employee’s overall absenteeism without proper justification, the Tribunal concluded that the employee could not establish the necessary causal link between this discrimination and his termination. Based on its prior findings, the Tribunal reasoned that the employee would have been terminated regardless of the discriminatory factor due to his non-compliance with the continuing employment agreement. The subsequent act of discrimination, while warranting a remedy, did not negate the pre-existing, valid, and non-discriminatory basis for termination.
The Tribunal explicitly stated that it is a complainant’s burden to prove, on a balance of probabilities, that they would not have suffered the loss “but for” the discriminatory conduct. In this case, the Tribunal found that the employee could not meet this burden because the evidence established that the employer had sufficient cause and intent to terminate him on non-discriminatory grounds.
Reinstatement: A Derivative Remedy
Regarding reinstatement, the Tribunal noted that while the fractured relationship between the parties was a potential factor, it was not the primary basis for its decision on the motion. The Tribunal emphasized that the authority to order reinstatement is a powerful remedial tool that also requires a causal link between the discriminatory practice and the loss of employment. Given its finding that no such causal link existed in this case, the Tribunal concluded that any consideration of reinstatement would be outside the scope of the final remedies decision.
Implications for Ontario Workplaces
The Todd decision offers valuable insights for both employers and employees in Ontario navigating human rights issues in the workplace:
Causation is a Cornerstone of Remedies
A finding of discrimination does not automatically unlock all requested remedies. Complainants must demonstrate a clear causal link between the discriminatory conduct and the specific loss they claim, such as lost wages or termination.
Pre-existing Legitimate Reasons Matter
Employers with legitimate, non-discriminatory reasons for taking employment-related actions may be shielded from certain remedies, even if discriminatory factors are also present, provided they can demonstrate that the action would have been taken regardless of the discrimination.
The Importance of Clear Documentation
This case underscores the importance of employers maintaining clear and well-documented reasons for employment decisions. This documentation can be crucial in demonstrating the existence of non-discriminatory grounds for actions taken.
The Bifurcated Process
The Tribunal’s use of a bifurcated process highlights a pragmatic approach to complex human rights cases. It allows for a focused determination of liability before significant resources are dedicated to assessing remedies.
Context-Specific Analysis
Each human rights case is highly fact-specific. The principles outlined in Todd provide guidance, but their application will depend on the unique circumstances of each situation.
Moving Forward: Focusing on Appropriate Remedies
While the Tribunal limited the scope of remedies for the employee’s termination, it did not dismiss the complaint entirely. The employer, OC Transpo, was still found to have engaged in discriminatory conduct by improperly considering his overall absenteeism. The Tribunal encouraged the parties to attempt to reach an agreement on appropriate damages arising from this specific act of discrimination and offered the Tribunal’s mediation services to facilitate this process.
The Todd case serves as a critical reminder that securing remedies in human rights cases requires more than just proving discriminatory conduct. Establishing a clear causal link between the discrimination and the claimed loss is an essential hurdle that complainants must overcome.
Understanding this principle is vital for Ontario employers and employees to navigate the complexities of workplace discrimination and ensure a fair and just resolution. Consulting with an experienced employment lawyer is crucial for assessing the merits of a claim and understanding the potential scope of available remedies.
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