Administrative law – Human rights complaints – Discrimination – Disability – Duty to accommodate – Employment law – Termination of employment – Damages – Decisions of administrative tribunals – Human Rights Commission – Judicial review – Standard of review – Correctness
Vantage Contracting Inc. v. Marcil,  A.J. No. 368, Alberta Court of Queen’s Bench, March 29, 2004, Veit J.
Marcil had been continuously employed at an Imperial Oil plant as a journeyman carpenter/locksmith since 1985. Vantage sought to obtain the maintenance contract for the plant and was ultimately awarded the contract in December 1997. Marcil was, to the knowledge of Vantage, 68 years old at that time. Vantage listed Marcil as a “key person” in the contract. Marcil suffered an accident at work in late October 1999 and was hospitalized for 11 days. Vantage terminated his employment prior to his return to work. Marcil submitted a complaint of discrimination to the Alberta Human Rights Commission on the grounds of age and physical disability. The Panel found that Marcil had suffered discrimination at the hands of Vantage through their failure to continue Marcil’s employment after the accident. The Panel assessed damages of $28,000 in favour of Marcil as compensation for loss of employment earnings. Vantage was also ordered to pay $1,500 to Marcil for injury to his dignity and self-respect caused by the termination. Vantage appealed the Panel’s decision.
On appeal, the court held that the appropriate standard of review was one of correctness, as Vantage was challenging the Panel’s finding of discrimination and its award of damages; both issues of mixed fact in law.
The court found that there was evidence that Marcil was physically capable of returning to his assigned employment after the accident. The evidence also clearly established that Vantage neither gave consideration to accommodation of any limitations Marcil may have had nor established that making the required accommodation would have caused Vantage undue hardship. Therefore, the court found that Vantage had discriminated against Marcil.
With respect to damages, the court found that damages for loss of employment caused by discrimination could not be calculated simply by applying employment law standards of notice, as to do so would fail utterly to advance the objectives of the legislation. The award of $28,000 for loss of employment earnings was appropriate. The court noted that damages for injury to dignity in discrimination cases are a species of non-pecuniary damages. Such an award was appropriate and the quantum of the award in this case was upheld.
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