Overview
Common law courts traditionally will not award reinstatement as a remedy, although there can be rare exceptions.
To obtain reinstatement, there usually ( subject to some exceptions shown below) must be found a remedy in a specific statute which allows for this relief. Very often the individual will be able to enforce this remedy through an administrative process, not the usual civil claim. The actual process will vary from statute to statute.
Part A Ontario and Federal Legislation which allow for Reinstatement
Part A1- Ontario Legislation:
1. The Employment Standards Act
This statute allows for reinstatement where the employer has (1) refused to allow an employee to return to work following a statutorily entitled leave ( pregnancy, parental, family medical emergency, organ donor, reservist, bereavement). As is the case with all reinstatement arguments, the remedy is a powerful one as it allows for lost income to the date of hearing plus reinstatement. Many adjudicators have allowed for an extra payment of one month for each year worked in the example of a pregnancy leave, where reinstatement was not ordered.
The same remedy is available where termination resulted from a refusal to take a lie detector test, or to work on a statutory holiday in the retail industry. In addition, a termination which resulted from conduct of the employer in retaliation to the exercise of a statutory right can lead to reinstatement.
This Act provides similar relief to any employee who has been adversely treated by a temporary help agency, including reinstatement for conduct which is found to be retaliatory to the employee’s enforcement or even an inquiry as to his rights.
2. The Environmental Protection Act
The above legislation, similar to many whistle blower protective statutes, is designed to protect workers who have been terminated or unfairly treated due to their willingness to co-operate with the required legislative protections in various statutes, all of the same public interest genre. They are referenced in the EPA and are as follows:
A. The Environmental Assessment Act;
B. The Environmental Protection Act;
C. The Fisheries Act (Canada);
D. The Nutrient Management Act, 2002;
E. The Ontario Water Resources Act;
F. The Pesticides Act;
G. The Safe Drinking Water Act, 2002;
H. The Toxics Reduction Act, 2009.
The complaint filed by the aggrieved party goes to the Ontario Labour Relations Board. Most importantly, in this process, unlike most complaints, the burden of proof of unfair conduct is on the employer, or more succinctly put, the burden of disproving unfair conduct rests on the employer.
3. Environmental Bill of Rights
This statute is quite similar to the above legislation. It similarly gives the right of reinstatement to a person who has been adversely treated due to the use of the legislation and also has the same reverse onus on the employer so accused.
4. Employment Protection for Foreign Nationals Act (Live-in Care Givers and Others)
A similar reprisal section exists in this legislation allowing for reinstatement of a qualified worker who has been terminated due to his request to enforce the legislation. This Act incorporates the enforcement procedures of the Employment Standards Act.
5. Labour Relations Act
This statute also allows for the potential of reinstatement not only to unionized workers but to any person who has been terminated for reasons contrary to the Act. This applies to employers and to trade unions. Management staff, for example, who may have supported certain union demands and had been terminated for same, may apply for reinstatement under section 96.1 of the Act.
6. Agricultural Employees Protection Act
This legislation similarly allows for the reinstatement of any worker terminated due to the exercise of the rights afforded by the statute. There is no reverse onus.
7. Occupational Health and Safety Act
A similar reinstatement process is available under this statute to redress a reprisal effected against an employee for reporting or complying with the objectives of the statute. This Act incorporates by reference to the remedial sections of the Labour Relations Act. ( sections 95(5),110, 111, 114, and 116. The reverse onus does apply.
8. Long-Term Care Homes Act, 2007
This statute provides the same remedy to any employees in retaliation to his co-operation in compliance with the legislation. The same reference is made to the Labour Relations Act. The reverse onus again applies.
9. Retirement Homes Act, 2010
This legislation provides the same remedy of reinstatement due to conduct which is considered to be reprisal to the same genus of conduct. Again the reverse onus applies.
10. Workplace Safety and Insurance Act
This Act does refer to the obligation of the employer to re-hire an injured worker, although the latter’s default in so doing will not result in a reinstatement order, but rather a required payment in the form of a penalty to the Board and a payment to the worker.
An injured worker who has been employed for 12 months as of the date of the workplace accident, and once medically able to return to the same duties, must be offered re-employment. (Apart from employers with under 20 employees and otherwise exempt by s. 41(2).
Where the worker can not perform the essential duties of the position as of the date of the accident, he must be offered the first opportunity of available alternate employment. The employer has an obligation to accommodate, unless there is undue hardship.
This obligation is time limited to the earliest of (1) two years from the date of the accident (2) one year from the date the person is able to perform the essential duties of the job or (3) the date on which the employee declines an offer of comparable employment or (4) age 65.
An employer who rehires an injured worker and then terminates within 6 months of such date, is presumed to have done so to violate the Act. This is a rebutable presumption. The employee must file a complaint in that event within 3 months from the date of termination.
The remedy in case of a default of the above obligations is not however reinstatement. The employer, in such instance, is obliged to pay a sum not exceeding the average annual earnings of the employee to the Board and a sum up to that amount to the employee.
11. The Public Service of Ontario Act
This legislation gives the limited right of reinstatement to a public servant who has been elected to the House of Commons or a provincial legislative assembly and in certain occasions to municipal office where the request for re-employment is made within 5 years from resigning in the case of the first two situations and within 4 years in the case of municipal office. The application must be made within 12 months of the date of ceasing to hold public office.
The Act also allows for reinstatement to a civil servant who has been dismissed due to his political activity or the refusal on his part to engage in political activity.
The complaint is made to either the Public Service Grievance Board or the Labour Relations Board, dependant upon the classification of employment.
The Code allows for the remedy of reinstatement in addition to other relief. The evidentiary basis of proving a human rights violation before the Tribunal is not as onerous as a typical civil claim. The complainant must make out a prima facie case by showing:
- He is a member of a group afforded protections by the Code;
- He has been subject to adverse treatment;
- The alleged conduct contrary to the Code was a factor in the adverse treatment.
Once proven, the employer then must show that there was a rational and credible reason for the conduct in question.
This is quite a different standard as required by a civil court. Reviews of the Tribunal’s decisions are in the form of judicial review and no longer by appeal. Further, the tribunal under the new legislation is given the highest degree of deference. The party seeking judicial review must show the decision in question is unreasonable. These factors make for a very difficult successful review of the Tribunal’s decision.
The Divisional Court in Shaw vs. Phibbs 2010 ONSC 3884 has noted that direct evidence of conduct contrary to the Code’s mandate is rare. The Tribunal typically makes its findings by reasonable inference from the evidence before it. The offensive conduct need not be malicious and further need only be a factor propelling the conduct in question, not the sole cause.
The remedy under the Code is a very powerful one with much lower threshold of proof and a differing onus from a civil court. Even where reinstatement is not the given remedy, a claim for lost income can be a formidable one, such as the 7 year award of lost income given in McKee vs. Hayes-Dana 17 CHRR d/79 and 19 CHRR d/511.
All this being said, the frequency of reinstatement orders under the Code remain few.
It remains to be seen if a civil court in exercising its apparent restitutionary powers under section 46.1 will adopt the same evidentiary basis. There is no apparent reason why it would not do so.
Part A2 – Federal Legislation
Section 240 of the federal code allows for a remedy known as “unjust dismissal” complaint which can lead to reinstatement and other relief. It is available only if (1) there has been 12 months of consecutive employment and (2) the applicant is a not a manager and (3) there has not been a genuine discontinuance of the job function in question or lack of work and (4) there is no union protection and (5) there is no relief under any other statute.
The case law has tended to define manager quite broadly in favour of the applicant. The test is one of autonomy and management power. The recent decision of Adjudicator John Stout is illustrative of this principal. He found that Jack Roda, branch manager of the Bank of Montreal was not a “manager” with the requisite degree to autonomy and was hence allowed to proceed with the unjust dismissal complaint. ( Roda v Bank of Montreal)
This remedy is often favoured by employees as the claim is not limited to reasonable notice, can lead to reinstatement and higher damages than the common law would allow. Also, adjudicators under the Code have authority to offer a lesser penalty, such as reduction in the damage award to reflect some lesser degree of sanction less than just cause for termination. The adjudicator , unlike a common law judge, can further compel a reference letter be provided.
The reinstatement remedy under the Code has not been interpreted to be the reflexive remedy as in arbitral jurisprudence but is more in the discretion of the adjudicator.
The limitation period for filing the complaint is very short – 90 days.
Statutory Leave
The federal code also allows for reinstatement for an employe who has taken pregnancy leave, maternity leave, parental leave and compassionate care leave by section 209.1
Reserve Force
Members of the Reserve Force have similar protection by section 247.96. It is also not permitted by law to refuse employment to a person because he is a member of the Reserve Force.
Health and Safety
The Canada Code provides similar protection to prevent and remedy reprisals against employees who have participated in health and safety violations by section 147. There are also serious criminal sanctions imposed by section 148.
2. Canadian Human Rights Act
As with the case with the Ontario Code, the federal act allows for the potential remedy of reinstatement and lost income to the date of the hearing and arguably beyond, where reinstatement is not ordered. Unlike the Ontario Code, there is no provision for a civil lawsuit to seek enforcement of the remedy. The Supreme Court of Canada decision in Keays vs. Honda will thus mean any human rights remedy must be confined to the administrative process before the Canadian Human Rights Commission.
3. Public Servants Disclosure Protection Act
This legislation, as its name suggests, provides protection to public servants who have been adversely treated due to a good faith disclosure of wrong doing. The remedy includes reinstatement and is effected by a complaint to the Public Servants Disclosure Protection Tribunal. There is a short time period given to initiate the complaint of 60 days.
4. Public Service Employment Act
The above act gives priority to an employee on a leave of absence, in certain circumstance, to available positions for the period of the leave plus one year. (section 41.1) Similar protection is afforded to a member of the Reserve Force.
5. National Defence Act
Reinstatement to active service is allowed by this legislation where an officer or non-commissioned member has been subsequently acquitted of any wrongdoing following his initial release for such unwarranted allegation.
6. Royal Canadian Mounted Police
This gives similar protection of a member of the RCMP found to be innocent of the allegations made against him.
7. Marine Personnel Regulations
Workers on Canadian marine vessels are given the same protection as to health and safety violations by the incorporation of the rights and privileges conferred by the Canada Labour Code, including reinstatement for reprisal.
Part B – Failure of a Public Body to Provide a Hearing Required or Inferred by Statute
Section A – Case Law pre Dunsmuir v. New Brunswick [2008] 1 SCR 190
Care must be taken to review the case law pre Dunsmuir, as the latter case dramatically altered the remedy available.
Under the principles of public law, where a publicly established body had a mandate imposed upon it to provide a hearing to address the rights of an effected employee, the failure to do so or the failure to provide a fair hearing could result in a court order setting aside the dismissal and allowing hence for reinstatement of the employee in question.
This was the principle applied in In Reference re Constitutional Questions Act (Ontario), [1957] O.R. 28, 7 D.L.R. (2d) 222, in which the Court of Appeal concluded a police chief was entitled to a hearing. The same conclusion followed in Brown vs. Waterloo Regional Board of Commissioners of Police (1982), 37 O.R. (2d) 277, 136 D.L.R. (3d) 49 (H.C.J.).
In McCaw vs. United Church of Canada, (1991), 4 O.R. (3d) 481, 82 D.L.R. (4th) 289 (C.A.), the plaintiff was awarded an order setting aside the termination decision on the same basis. The employer had failed to provide a proper hearing as required by the rules of the Church, which in this instance was a body incorporated by Act of Parliament, hence providing an argument of a public body to which a hearing was mandated. McCaw was ordered, in effect, reinstated with ten years back pay.
Typically provincial legislation creating municipalities allowed for a hearing process for certain specified employees or alternately, the legislation was read to imply a hearing obligation. The failure to provide a hearing or alternately a proper hearing, often led to a judicial review application to set aside the dismissal. A more effective remedy may have been to sue for declaratory review with an accompanying damage claim. The 1992 decision of the New Brunswick Court of Appeal in Gerrard and the Town of Sackville is a good example of a successful judicial review application.
The Ontario Municipal Act has since been revised to remove the hearing obligation which was once specified in the statute.
The leading case on this subject, prior to Dunsmuir, was the Supreme Court of Canada decision in Knight v. Indian Head School Divn No. 19 1990 1 SCR 653. The Court summarized the test of a public body to provide a fair hearing process and the relevant criteria for the duty to be established. The Court then looked to see if the applicantwas more than a mere employee and sought to determine if he is more akin to an officer.
The decision of the British Columbia Supreme Court in Reglin v. Town of Creston provided a good review of the then relevant case law. In the Reglin decision, Mr. Justice Melnick did not provide reinstatement as the remedy due to the delay in commencing the judicial review application, the fact that the Town had hired a replacement and also that the plaintiff had himself secured a new 5 year term of employment.
Section B – Dunsmuir v New Brunswick
The Supreme Court rejected the principles of Knight as set out above and determined the remedy to set aside a termination decision ignored the fundamental employment contractual issues in play between the terminated employee and the public body employer. The Court concluded that employee should have the same remedy as available to those in the private sector.
The Court did say that the remedy to insist on fairness in the termination process by a proper hearing would still apply in limited circumstances. These were stated to be applicable to a person such as a judge, a minister of the Crown or others holding a constitutionally defined state role.
Also a person holding a position “at pleasure” or subject to the will of the Crown will be entitled to procedural fairness.
In addition it stated a statute may be interpreted to require a fair hearing process in the example given of an older English case involving a teacher whose employment could be terminated by statute on 3 weeks notice.
Accordingly the pre Dunsmuir case law must be read very carefully to determine its applicability. It will be now be the exceptional case to allow for the reinstatement remedy. As the Court noted in Dunsmuir, the reinstatement term may be a misnomer, as the remedy is to obtain an order quashing or setting aside the termination. The effect may look like reinstatement, but there is a distinction, as once set aside, there is nothing to prevent the employer from then proceeding to implement the hearing process which has previously been defective.
