In the case of Wegner v University of Alberta, 2026 AHRC 107, the Alberta Human Rights Commission ordered the reinstatement of an employee who had been terminated over eight years prior.
This case is an interesting one, as orders for reinstatement are very rare. While this case was decided on a very particular set of facts, the Tribunal’s analysis provides some useful insight into the circumstances in which reinstatement may be an appropriate remedy.
Facts
The relevant facts in this matter are as follows:
- The complainant, Ms. Wegner (the Complainant) was employed by the Respondent, the University of Alberta (the Respondent) as a Communications Strategist in its School of Business.
- The Complainant’s employment was terminated on December 14, 2017.
- The Complainant subsequently filed a human rights complaint (the Complaint) against the Respondent, alleging discrimination on the basis of physical and mental disability, contrary to section 7 of the Alberta Human Rights Act (the Act).
- In a written decision (the First Decision), the Alberta Human Rights Tribunal (the Tribunal) held that the Respondent had discriminated against the Complainant for failing to accommodate her disability and terminating her employment, and awarded her damages for injury to dignity, as well as damages for loss of benefits and loss of pension.
- On application by the Respondent, the Court of King’s Bench judicially reviewed the First Decision. The Court found that while the Tribunal’s finding of discrimination was reasonable, it unreasonably failed to give consideration to whether the Complainant could have been reinstated to her position.
- Accordingly, the Court ordered the Tribunal to assess and determine whether the remedy to determine whether the remedy of reinstatement was appropriate.
- The Court also noted that, should reinstatement be ordered, the Tribunal may revisit and amend the existing damages award accordingly. Should reinstatement not be ordered, the award of damages is reasonable and will stand.
Analysis
The sole issue for analysis by the Tribunal was whether reinstatement of the employee to work was an appropriate remedy in the circumstances.
While the Court did suggest that the Tribunal consider the issue of damages, neither party addressed this issue in their written submissions. Accordingly, the Tribunal instructed them to provide such submissions before making a decision.
The Tribunal began by reviewing its remedial powers under to section 32(1) of the Act. Specifically, the Tribunal noted that it was empowered to make an order of reinstatement pursuant to section 32(1)(b)(ii) of the Act, which holds that it may order a respondent to:
“make available to the person dealt with contrary to this Act the rights, opportunities, or privileges that person was denied contrary to this Act.”
The Complainant argued that reinstatement was an appropriate remedy, as there were no factual or legal barriers to her reinstatement, and reinstatement was the only way to make her whole, as it was the only remedy which would address the impact which the discrimination had on her career.
The Respondent argued that reinstatement was not an appropriate remedy, as the School of Business underwent a restructuring after her termination, and her employment would have been terminated in any event. In other words, the Respondent argued that reinstatement would put the Complainant in a better position than she would have been, had she not been terminated in 2017.
The Respondent also argued that the significant passage of time made reinstatement inappropriate, and that structural changes it had made might make it so the complainant would not be able to work there anymore.
The Tribunal found the passage of time did not bar reinstatement, and by itself this was not sufficiently prejudicial to the respondent to prevent it. The Tribunal also found that the respondent was a “large employer with various faculties, departments and affiliated institutions” and could reinstate her in any of its departments and, if necessary, retrain her.
The Tribunal found there reinstatement was the “most appropriate option for restoring the complainant to the position she would have been in had the discrimination in this Complaint not occurred.”
My Take
This was quite an interesting case, as it is very rare for the Tribunal to order reinstatement.
It is important to remember however, that this case was decided on a specific set of facts – in particular, the Tribunal placed heavy emphasis on the fact that the Complainant did not bear the Respondent any serious ill will (a relatively rare situation, given the significant emotional impact that discrimination has on an individual), and the fact that the Respondent, as a large employer, could have found a position for her elsewhere in her operations.
For complainant’s counsel, this case serves as an important reminder that, if their client is truly open to reinstatement, it may pay to moderate their language somewhat – the Respondent’s arguments that the relationship was irreconcilable was rejected in large part because the Complainant used fairly balanced language, and in fact praised the Respondent overall.
For respondent’s counsel, this case serves as a reminder that there is always value in being open to the idea of reinstatement, particularly if there’s a real opportunity to “shuffle” a complainant to a new department.
While the Tribunal did not address the matter in this case, the Court of King’s Bench clearly indicated that an order of reinstatement could affect the value of the complainant’s damages claim. If a respondent is willing to agree to reinstatement relatively early in the human rights process, that could significantly limit the scope of the complainant’s damages claim, and thus the amount the respondent may have to pay out-of-pocket.
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This blog post is an original work of Bow River Law LLP. The original publish of this article is on Bow River Law’s website blog.
