Reinstatement

The remedy of reinstatement is an order which will almost never be made by a court within a wrongful dismissal action. Although courts have the power to order reinstatement, they seldom exercise this power due to the fact that they consider it contrary to public policy to order the continuation of the employment relationship contrary to the wishes of either party.

A board of inquiry under the Ontario Human Rights Code and a tribunal appointed under the Canadian Human Rights Act both have the authority to order reinstatement of employment in instances where the tribunal is satisfied that the termination of the person's employment came about, in whole or in part, as a result of the discriminatory conduct in question. The Canadian Human Rights Act specifically provides that reinstatement will not be ordered where it would result in the removal of an individual from the position of employment in question. In other words, if some innocent third party who had no involvement in the discriminatory conduct in question filled the position of employment that had been vacated by the complainant, the tribunal will not order reinstatement of the complainant under those circumstances.

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