Quantum of Human Rights Code Damage Awards Remain Uncertain After Recent Divisional Court Decision
November 10, 2014
In 2008, the Ontario Human Rights Code was amended to give the Court jurisdiction to award damages with respect to infringement of human rights, and the $10,000.00 cap with respect to mental distress damages was removed. It left the human rights landscape in Ontario in a state of great uncertainty as to where damages would progress.
However, a recent case heard by the Human Rights Tribunal of Ontario (“HRTO”) awarded a mere $5,000.00 in damages against an employer for engaging in discriminatory termination. When the employee appealed, and the Divisional Court was called upon to review this decision, the Divisional Court held unanimously that the award of $5,000.00 was not so far outside the range of awards with respect to non-wage loss for disability related discrimination in employment such as to be demonstrably unreasonable. The Court refused to interfere with the decision of the HRTO.
The employee had been employed by a retirement residence, which provided both assisted and independent living units, for over 23 years. The position was a unionized one. She commenced an extended sick leave prior to recovering sufficiently some fourteen (14) months later such that she was capable of returning to modified work. The employer made attempts to find suitable work and made her an offer of a position in the laundry unit. The employee advised that she was not capable of performing the job as its duties were not within her medical restrictions. Her position was supported by medical evidence. The employer terminated her saying it could therefore not accommodate her. The HRTO found that the employer had failed to meet its procedural obligations under the duty to accommodate, and so had infringed the employee’s rights in prematurely terminating her employment. The HRTO held that an award of $5,000.00 for injury to dignity, feelings and self-respect was appropriate considering the seriousness of the conduct and the effect on the employee.
In considering the decision the Divisional Court noted that the damage award of the HRTO did not stand in the place of other damages which might have been available to the employee and noted that it was less than what might have been awarded on a successful claim for wrongful dismissal. The employee had been unionized and had grieved her termination, but the grievance process had been discontinued by the Union. The Court found that the employee’s loss of income was not attributable to the discrimination as it appeared no accommodation was available. Further, the Tribunal did not have authority to award “severance pay” (an award the employee could have sought civilly (if not unionized), under the Employment Standards Act (ESA) or through her grievance). The Court stated that the employee should have continued her grievance to seek the losses attributed to her termination. Further, the Court stated that the employee also had available to her ESA remedies to argue that her position had not been abandoned. In other words, the HRTO was not the best forum for the employee given the ultimate findings of fact.
In short, while the employer in this case may have simply failed to utilize the correct process in terminating the employee’s employment, a finding of discriminatory conduct and an award of $5,000.00 does little to send a message to prospective human rights offenders that their conduct will be taken seriously and not condoned. Of course there are other decisions emanating from the Courts which are awarding human rights damages. However the direction in which those decisions will ultimately take as to the appropriate quantum has yet to be seen.
Campbell v. Revera Retirement LP, 2014 ONSC 3233 (Ont.Div.Crt.).