Code: Ontario Divisional Court
The Ontario Divisional Court has upheld the ruling by the Human Rights Tribunal of Ontario (HRTO), which found that Chrysler Canada’s did not violate the Ontario Human Rights Code (“Code”), by giving preference to accommodating workers injured on the job.
The original HRTO decision, [Citation: http://canlii.ca/t/gxfnp] held that while the employer “… does give preferential treatment in regards to access to non-standard (“accommodated”) jobs to injured workers who have an active claim with the WSIB … this results from the operation of the WSIA (Workplace Safety & Insurance Act) and not from discrimination contrary to the Code.” In as much, the Tribunal found that the employer’s program, while prioritizing injured workers for accommodation was a construct of the obligations under the WSIA, and the effect of the NEER experience rating program, did not constitute discrimination due to disability, as prohibited by the Code.
Notwithstanding the HRTO’s finding that the employer’s program of prioritizing accommodation for WSIB claims was not a violation of the Code, the Tribunal found that the employer’s program with regards to the accommodation of the worker was still a breach of the procedural obligation of the Code by “…precluding consideration of categories of jobs other than a permanent standard job in the period from August 2013 to May 2014.” The worker was given a financial award by the Tribunal as compensation for injury to dignity, feelings, and self-respect for the discrimination arising from the matter.
The worker appealed the HRTO decision to the Ontario Divisional Court. In the application to the court, the worker raised three issues with respect to remedy: “the failure to award damages for loss of income, the low quantum of the amount awarded, and the failure to make a future compliance order requiring the employer to retain an independent specialist to assist in drafting appropriate medical placement and return-to-work policies.”
The Divisional Court upheld the HRTO’s decision on the matter; the worker’s application for judicial review was dismissed with cost. In upholding the decision of the HRTO, the court accepted the position of the tribunal that prioritizing the accommodation of injured workers in of itself is not a breach of the Code.
While this decision reinforces similar previous decisions of the HRTO, it is also important to note that the tribunal did find the employer in breach of the procedural obligations associated with the duty to accommodate – a situation that is unfortunately still too common and directly related to the design and application of return to work programs.