Nov 1

Human Rights Damages Increasing: Toronto Employment Lawyer

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Civil Courts Increasingly Awarding Human Rights Damages in Employment Law Cases

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The Ontario courts are following the lead of the Ontario Human Rights Tribunal and are increasingly likely to award damages for human rights violations (sometimes higher than their Tribunal counterparts). This should serve as a caution to employers who commit discrimination within the context of employment.

History

Traditionally, the Human Rights Tribunal in Ontario and in other provinces have awarded damages for injury to dignity, feelings, and self-respect of victims of discriminatory conduct within the range of $500-$15,000, and in exceptional cases, $25,000-$40,000. 

In 2008, substantial amendments were made to the Ontario Human Rights Code, which included removing the limit for any order of compensation and permitting civil courts to award employees monetary remedies for human rights violations. However, awards of damages remained inadequate despite these amendments according to Andrew Pinto, the counsel commissioned by the Attorney General to make recommendations in the 2012 Report of the Ontario Human Rights Tribunal. Mr. Pinto emphasized that damages awards that are too low trivialize the social importance of the Code by creating a licence fee to discriminate.”

The Tribunal has appeared to be following his recommendations with respect to increasing these awards. This was recently demonstrated by the Tribunal’s 2015 decision in O.P.T. v. Presteve Foods Ltd., 2015 HRTO 675 (CanLII). In O.P.T., the applicant was awarded approximately $200,000 for compensation for the injury to her dignity, feelings, and self-respect as a result of her employer’s discriminatory conduct.

Civil Courts Respond

Likewise in 2013, the civil courts for the first time awarded monetary damages for a human rights claim. In the context of employment law, this means that in addition to the awards for damages for wrongful dismissal situations, employees may potentially be awarded additional human rights damages if a prohibited ground under the Code was a factor in their dismissal.

According to the principle in Douglas v. SLH Transport, 2010 CHRT 25, a protected ground need not be the sole or primary reason for the termination in order for a human rights complaint to succeed. Moreover, should arguments for human rights violations succeed in a Civil Court, Courts have currently placed no limits in the award for the infringement of the Code. As the Court stated in ADGA Consultants Inc. v. Lane 2008 CanLII 39605 (Div. Ct.), “…there is no ceiling on awards of general damages under the Code…”

The first civil case in which human rights damages were awarded in Ontario was Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799. Justice Grace awarded $20,000 in general damages against the employer for terminating the plaintiff directly because of Wilson’s disability.

Since that time courts have increasingly been more likely to and have awarded greater amounts for human rights violation.

In Partridge v. Botony Dental Corporation, 2015 ONSC 343, the court determined that the employer terminated the plaintiff on the basis of family status in part because the dismissal came shortly after the plaintiff’s return from maternity leave. As a result, $20,000 was awarded to the plaintiff for the infringement of her human rights.

The Small Claims Court in 2015 found that the similarity of the facts to the Patridge case entitled the plaintiff in Bray v. Canadian College of Massage and Hydrotherapy, 2015 CanLII 3452 (ON SCSM) to a high amount of $20,000 in human rights damages.

In Silvera v Olympia Jewellery Corporation, 2015 ONSC 3760 (CanLII), the Court found that the plaintiff was subjected to racial and gender-based discrimination and harassment during the course of her employment. In addition, the Court held that these prohibited grounds of discrimination of race and sex were factors in the plaintiff’s termination. As a result, the Court awarded human rights damages in the amount of $30,000 to the plaintiff. Taking into account the wrongful dismissal damages, aggravated damages, and punitive damages, among others, the plaintiff received damages awards of approximately $300,000 in total.

To date, the highest amount civil courts have awarded for human rights violations was by Ontario’s highest court, the Ontario Court of Appeal in Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520 (CanLII). In this case, the employer failed to accommodate the plaintiff’s hearing disability despite repeated requests. Moreover, medical evidence revealed that the plaintiff suffered from a depressive disorder as a result of the discrimination she faced. At trial, Justice Dow awarded the Plaintiff $20,000 for the injury to her dignity, feelings, and self-respect.

Recently, the Ontario Court of Appeal increased this award to $40,000. The appellate Court determined that doubling the monetary reward was justified as the discriminatory conduct occurred numerous times. This sends a strong signal to all civil court judges that discriminatory conduct is not to be taken lightly and that there is no official or unofficial cap on damages.

The table below lists the aforementioned cases which illustrate the current trend in Civil Courts of increasingly awarding human rights damages in increasing amounts.

Year

 

 

Case

 

 

Reasons for Increased Damages

 

 

Human Rights Damages Awarded

 

 

2013

 

 

Wilson v. Solis Mexican Foods Inc.

 

 

Disability was a factor in the employee’s termination

 

 

$20,000

 

 

2015

 

 

Bray v. Canadian College of Massage and Hydrotherapy

 

 

Family status, as the employee was a new mother, was a factor in the employee’s termination

 

 

$20,000

 

 

2015

 

 

Partridge v. Botony Dental Corporation

 

 

Family status, as the employee was a new mother, was a factor in the employee’s termination

 

 

$20,000

 

 

2015

 

 

Silvera v. Olympia Jewelry Corporation

 

 

Employer discriminated against the employee on the basis of her gender and race throughout the course of her employment and these prohibited grounds were factors in her termination

 

$30,000

 

 

2016

 

 

Strudwick v. Applied Consumer & Clinical Evaluations Inc.

 

 

Employer’s failure to accommodate employee’s disability despite employee’s repeated requests for accommodation

 

 

$40,000

 

 

 

Implications

For employees this increases access to justice as it ensures that if you experience discrimination and wrongful termination, you may pursue your claim in one place. The increase in damages demonstrates that civil courts are taking these claims seriously

For employers this increase in damages demonstrates that it is important to be proactive. Employers should take proper steps to raise awareness in the workplace of what behaviour may be construed as discriminatory. These steps include investing in employee training and drafting policies and procedures that comply with relevant legislation including the Ontario Human Rights Code and Occupational Health and Safety Act.

Contact Monkhouse Law today for a free consultation regarding human rights and employment law issues.

 

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