Hamilton Employment Lawyers – Fighting for Wrongfully Terminated Employees
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If you have been wrongfully terminated due to a serious mental or physical disability, our Hamilton wrongful termination lawyers at Lalande Personal Injury Lawyers can help. All too often, employees in Ontario are terminated from their places of employment because they cannot keep up with the demands of their jobs due to disability issues. Fortunately, the law in Ontario is intended to safeguard employees with disabilities from employment termination and discrimination. Employers in Ontario are prohibited from discriminating on the basis of disability and must be committed to taking all other necessary actions to ensure equal employment opportunities for persons with disabilities in accordance with the Human Rights Code and other applicable provincial and federal laws.
In short, Ontario employees with disabilities are entitled to the exact same opportunities and benefits as everyone else. If your employer knows that you suffer from a mental or physical disability, they must accommodate you to the point of undue hardship. If they do not, then you may have a claim for wrongful dismissal and violation of your rights at law. Our Hamilton employment lawyer can help you get your life back on track.
What Types of Disabilities are Protected Under the Human Rights Code?
Section 10 of the Human Rights Code tells us that protected disabilities include, but are certainly not limited to:
- a physical disability, infirmity, malformation or disfigurement that is caused by bodily injury
- a physical disability, infirmity, malformation or disfigurement that is caused by a birth defect
- any type of physical disability caused by illness
- diabetes mellitus
- epilepsy
- brain injury
- paralysis
- amputation
- lack of physical coordination
- blindness or visual impediment
- deafness or hearing impediment
- muteness or speech impediment
- physical reliance on a guide dog or other animal
- the use of a wheelchair or other remedial appliance or device
- mental impairment
- development disability
- a learning disability
- a mental disorder
- an injury that caused a WSIB Claim
Some other medical conditions that qualify for long term disability can be found here.
What Does Discrimination Due to a Disability Mean in the Workplace?
Discrimination can happen in many ways, but overall, the core issue is when employers specifically exclude (directly or indirectly) employees with disabilities from employment and work opportunities. This can take place in the form of subtle or indirect discrimination, harassment (meaning a pattern of attacking a disability), creating a poisoned work environment, unreasonable reprisals, unwelcomed comments, name-calling, intrusive questioning, disclosing someone’s disability to people or sharing offensive material about people with disabilities by email or text.
Do Ontario Employers Need to Accommodate My Disability?
They sure do. Were you fired due to a disability? Employers are obliged to accommodate an employee’s disability to allow that employee to continue working unless providing that accommodation would result in undue hardship for the employer. How is this decided? Under the Code, the first question is whether or not the employee is capable of performing the essential duties of the pre-disability job. If not, the second question is whether the employee can perform the essential duties of his or her pre-disability job with accommodation.
An employee who cannot perform the essential duties of his or her pre-disability job, even with accommodation, is generally entitled under the Code to access other work that may be available, together with consideration of whether the employee could perform the essential duties associated with that other work with accommodation. This might involve consideration of available jobs, but may also involve creative accommodation solutions, including new job descriptions that allow the worker to continue working.
Compensation for Wrongful Dismissal and Human Rights Discrimination
If you suffer a serious disability and you have been terminated, you may (depending on your disability, your term of service, as well as other factors) be entitled to file a claim against your employer for payment of damages based on numerous heads of damages. If you were fired due to a disability or had unfair dismissal due to a disability, you may be entitled to compensation for damages. You may be wondering, “Can an employer terminate an employee on long-term disability in Ontario?” Yes, an employer can terminate an employee on long-term disability, but no because of the disability itself. The HRC makes it illegal to fire an employee simply because they sustained injuries or have an illness that supports a claim for long term disability. These cases are complicated so we recommend contacting our Hamilton long term disability lawyer to help you through the process.
Damages About Your Termination:
Damages for Wrongful Dismissal
You may be entitled to damages for wrongful dismissal if you have been paid insufficient payment in lieu of notice at termination. Wrongful dismissal, or payment instead of notice, is an award assessment of damages over the minimum termination pay mandated by the Employment Standards Act. The state of the law at present is that the appropriate range for reasonable notice has no limit or “cap.” Damages can be awarded in excess of 24 months.
Aggravated Damages
Aggravated damages are not punitive damages. Aggravated damages are considered “an award that aims at compensation but takes full account of the intangible injuries such as distress and humiliation that may have been caused by the defendant’s insulting behaviour. Aggravated damages augment damages assessed under the general rules relating to the assessment of damages. These damages are not awarded in addition to general damages but are rather part of the assessment of general damages, taking into account any aggravating features of the case and, in that regard, increasing the general damages awarded.
Typically, aggravated damages are described as compensatory damages, which are part of breach of contract damages. They are to address the additional harm suffered because of the way your employment contract was breached.
Punitive Damages
Punitive damages are meant to act as a deterrent and to punish any other like-minded employers. For example, in the 2011 Hamilton case of K.T. v. Vranic, Judge Whitten ordered an employer, a bar owner, to pay $25,000.00 in punitive damages as a deterrent to any other like-minded employers. The bar owner assaulted a young employee. Justice Whitten noted that the employer’s behaviour was indeed high-handed, taking advantage of a young employee who was simply trying to work part-time to make money to pay for school. It was reported that the employer’s actions were methodical and without a hint of any consideration of the employee in her own right. In particular, Justice Whitten noted that the employee “was reduced to an object under his control, a throwback to a time when the employer dominated his slaves.”
Special Damages for Loss of Past Income
Special Damages are designed to return the plaintiff to the same financial position that he or she was in before the alleged injury. Under all human rights statutes, victims of discrimination may receive compensation for special damages such as lost income and expenses incurred as a result of the discrimination. For example, in the case of Whitehead v. Servodyne Canada Ltd. (1986), 15 C.C.E.L. 5 (Ont. Bd. Inq.), a complainant who was discriminated against based on sex was awarded lost salary from the date of termination to the date the company closed its operations. Another famous case, Lippe v. Quebec Public Security Department, 1998 CanLII 30 (QC TDP), is a Quebec Human Rights case where a Tribunal awarded the complainant six years of lost salary, representing the period from the date of termination to the end of the Tribunal hearing.
Damages About the Conduct of the Employer:
General Damages – Human Rights Damages
General Damages in the context of employment law are intended to compensate for pain and suffering, including damages for injury to dignity, feelings and self-respect. If you were fired while suffering a disability, you may also seek damages for injury to your dignity, feelings and self-respect. The Ontario Human Rights Code (the “Code”) was changed several years ago to allow our Courts the power and authority under s. 46.1 (1) of the Code to award damages for the infringement of Code rights. Discrimination claims must be “piggy-packed” to unfair dismissal lawsuits.
Loss of Earning Capacity
If there is a real and substantial possibility that your earning capacity will be impaired because of your disability after being fired, you may have a claim for loss of earning capacity, particularly if you are undergoing treatment that may be ongoing or extensive as a result of the discrimination you experienced.
For example, in the case of Silvera v Olympia Jewellery Corporation, the employee was subjected to a series of sexual assaults and battery, sexual harassment, and racial harassment by the employer and was awarded $33,924.75. The Judge found that there was a real and substantial possibility that the terminated employee’s earning capacity would be impaired because she was not comfortable working with older men in a supervisory role or nearby after what she went through. The claim was limited to three years.
It is important to remember that there is really no precise mechanism to measure an employee’s future economic loss – and often it comes down to a reasonable approach to the situation.
Cost of Future Care and Future Therapy
Often times employees who are subjected to long-standing discrimination and humiliation may need to undergo extensive therapy to help rehabilitate them back into a working environment. In the Silvera case noted above, the employee was awarded $42,750.00 in future therapy costs after an expert psychologist testified and offered his opinion on the plaintiff’s psychological fragility and the necessity of ongoing treatment.
Experience Matters
A few of our recent result are noted below. It’s very important to understand that no two cases are the same. Past results are not necessarily indicative of future results and litigation outcomes will vary according to the facts of individual cases. The information below are examples of Matt Lalande’s cases that he has settled or tried to verdict over his career and is for informational purposes only.
View More Case ResultsOur Hamilton Disability Termination Lawyer Office
Lalande Personal Injury & Wrongful Death Lawyers
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Hamilton, ON L8P 1A4, Canada
905-333-8888
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Call our Hamilton Wrongful Dismissal & Disability Lawyers
If you have been terminated because you are disabled or you suffer a disability, you will no doubt face an uphill battle. In employment, people with disabilities are fully entitled to the same opportunities and benefits as everyone else. If you have been discriminated against during the context of your employment, during or prior to termination, please call us to speak to a lawyer about your discrimination. We understand that you have been hurt and that you may have trouble finding alternate employment because of your disability.
At Lalande Personal Injury Lawyers, we take pride in being trusted Hamilton personal injury lawyers since 2003. Over the years, we’ve helped our clients recover more than $45 Million in settlements and verdicts in personal injury, disability, and employment law cases. Whether you’re dealing with a life-changing injury, a denied disability claim, wrongful death, a hurt child or employment termination, we are here to provide compassionate and experienced legal representation. If you believe you have a case, call us today—we’re ready to help you secure the compensation you deserve.
Call Lalande Personal Injury Lawyers today, no matter where you are in Ontario, at 905-333-8888 for your free consultation. Alternatively, you can contact us online, confidentially, by filling out a contact form.