Employment & Labour Law: An update on Human Rights remedies & awards

Employment and Labour Law

Ouch, that hurts! An update on Human Rights remedies & awards

Melanie Polowin

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Human Rights remedies: a recap

Which Human Rights laws apply?

• generally (everywhere except Quebec), the employment/worker relationship is governed by the common law of the province where the employee/worker primarily works (in Quebec, the Civil Code applies)

• for provincially regulated employers, the Human Rights legislation of the province where the employee/worker primarily works will apply

• for federally regulated employers, the Canadian Human Rights Act will apply

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Human Rights remedies: a recap

Why does it matter?

• substantial overlap/similarities but also significant differences

• what breaches in Quebec may not in Nova Scotia

• provincially regulated employers who operate across multiple provinces may want to pitch to the highest common denominator…but if not, be mindful of the differences

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Human Rights remedies: a recap

What kinds of remedies can Complainant seek?

• specifics vary depending on the jurisdiction, but generally, Human Rights legislation empowers Tribunals to award a broad range of remedies under 3 basic categories:

• financial (compensatory) remedies• non-financial (remedial) remedies• public interest (educational/preventative) remedies

• Tribunals have very broad discretion to be (and often are) quite creative

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Human Rights remedies: a recap

Ontario Human Rights Code, s. 45.2:

Orders of Tribunal: applications under s. 34

45.2 (1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act. 2006, c. 30, s. 5.

Orders under par. 3 of subs. (1)

(2) For greater certainty, an order under paragraph 3 of subsection (1),

(a) may direct a person to do anything with respect to future practices; and

(b) may be made even if no order under that paragraph was requested. 2006, c. 30, s. 5.

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Human Rights remedies: a recap

Canadian Human Rights Act, s. 53 (2):

Complaint substantiated

(2) If at the conclusion of the inquiry the member or panel finds that the complaint is substantiated, the member or panel may, subject to section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in the order any of the following terms that the member or panel considers appropriate:

(a) that the person cease the discriminatory practice and take measures, in consultation with the Commission on the general purposes of the measures, to redress the practice or to prevent the same or a similar practice from occurring in future, including

(i) the adoption of a special program, plan or arrangement referred to in subsection 16(1), or

(ii) making an application for approval and implementing a plan under section 17;

(b) that the person make available to the victim of the discriminatory practice, on the first reasonable occasion, the rights, opportunities or privileges that are being or were denied the victim as a result of the practice;

(c) that the person compensate the victim for any or all of the wages that the victim was deprived of and for any expenses incurred by the victim as a result of the discriminatory practice;

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Human Rights remedies: a recap

Canadian Human Rights Act, s. 53 (2) cont’d:

(d) that the person compensate the victim for any or all additional costs of obtaining alternative goods, services, facilities or accommodation and for any expenses incurred by the victim as a result of the discriminatory practice; and

(e) that the person compensate the victim, by an amount not exceeding twenty thousand dollars, for any pain and suffering that the victim experienced as a result of the discriminatory practice.

Special compensation

(3) In addition to any order under subsection (2), the member or panel may order the person to pay such compensation not exceeding twenty thousand dollars to the victim as the member or panel may determine if the member or panel finds that the person is engaging or has engaged in the discriminatory practice wilfully or recklessly.

Interest

(4) Subject to the rules made under section 48.9, an order to pay compensation under this section may include an award of interest at a rate and for a period that the member or panel considers appropriate.

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Human Rights remedies: a recap

Ontario-based employees of provincially regulated Employers can piggy-back a Human Rights complaint onto another cause of action (constructive/wrongful dismissal, breach of contract):

Civil remedy

46.1  (1)  If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

Tactically, it’s one-stop shopping now: • no more having to choose between court and Tribunal• Employers lose the benefit of “waiting out” Complainants who chose the old

(incredibly slow) Human Rights route

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Financial (compensatory) remedies

Tribunals can award:

• lost income (past and future)**

• lost non-salary compensation (bonus, commission, benefits, pension, RRSP match, etc.)**

• actual financial losses and out of pocket costs incurred as a consequence of the breach (dental costs that would have been covered under the benefit plan, mitigation expenses, etc.)**

** The duty to mitigate applies. However, in the Human Rights context, awards for these losses are not limited by the duration of any “reasonable notice” period!

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Financial (compensatory) remedies

Tribunals can award:

• lost statutory employment-related benefits (e.g. Employment Insurance Act maternity, parental, compassionate leave benefits)

• general damages for injury to dignity/feelings (non-taxable, and uncapped)

• pre-judgment and post-judgment

The range and risk and time frames covered by remedies goes far, far beyond your “usual” termination package assessment.

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Non-financial (remedial) remedies

Tribunals can order Employer to:

• reinstate/promote Complainant on specified terms

• offer employment to Complainant on specified terms

• provide Complainant with reference letters on specified terms

• take specified actions in the workplace to benefit Complainant (e.g. physical changes to workstation, removal or training of harasser, reassignment of supervisor, adoption of specific work schedule, removal of documents from Complainant’s personnel records)

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Public-interest (educational/preventative) remedies

Tribunals can order Employer to:

• develop or change certain practices/policies (e.g. recruitment, hiring, training)

• develop/change procedures

• publicize the decision or certain communications internally to employees

• post Human Rights information material in workplace

• conduct workplace education and training

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Intent v Effect

Remember:

• actions that violate Human Rights can be wholly “innocent” in the sense of being inadvertent, unintended, and sincerely regretted

• if the effect of the action is a breach, then breach will be found despite Respondent’s lack of intention to breach or its well-meaning (but misguided) motives

• Respondent’s intention/motive is relevant to remedy

That’s why it is critical to implement effective policies, education and training…because if staff breach, Employer often pays.

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Breach for one, and breach for all?

Remember, too: (mis)conduct that breaches Human Rights:

• may also breach health & safety, workers compensation and/or employment/labour standards legislation

• may also breach Employer policies or the employment contract

• may trigger constructive dismissal claims

• may trigger medical notes and disability leaves

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Breach for one, and breach for all?

The lesson to be learned?

When it comes to Human Rights violations, an ounce of prevention is worth a fortune in avoided:

• sky-rocketing legal fees• lost opportunity cost of time/resources/staff devoted to investigation and

defense of complaints and claims• costly damage awards• unwanted publicity• reputational harm• loss of staff respect, industry respect, community respect• actual loss of business

Still not sure that prevention is the smart bet? Listen and learn...

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From B.C.: Kelly v University of British Columbia

Key facts:• Kelly had ADHD and non-verbal learning disability• came to UBC to complete medical residency Program• after failing first rotation, disclosed disabilities• UBC required him to see psychiatrist• difficulties continued; eventually, UBC terminated him from

Program for “unsuitability”

Held:• accommodation was certainly difficult but not to point of undue

hardship• UBC breached duty to accommodate disability

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From B.C.: Kelly v University of British Columbia

Wage loss award:

• Guiding principles:• purpose of compensation is to restore Complainant to same position

s/he’d be if no discrimination occurred• Complainant has burden to establish entitlement by demonstrating

causal connection between discriminatory act and loss claimed• if causal connection is established, Tribunal has discretion regarding

quantum of award (bearing in mind purposes of the remedial provisions of the Code, and the purpose of the award)

• Relevant factors: mitigation efforts (reasonable); extent to which UBC breach delayed ability to enter practice; possibility he might not have completed Program on time/successfully even absent the breach

See: http://canlii.ca/t/g2h3d

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From B.C.: Kelly v University of British Columbia

Wage loss award (2007 – 2015):

“The difference between the without Incident ($788,074.10) and with Incident earnings ($402,879.40) is $385,194.70.

I order UBC to pay to Dr. Kelly the sum of $385,194.70 as compensation for lost wages.”

Incidentals:• expert witness/report expenses• tuition expenses related to mitigation efforts• lost wages for attendance at hearing• tax gross-up on damages for lost wages• pre and post judgment interest

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From B.C.: Kelly v University of British Columbia

Award for injury to dignity, feelings and self-respect:

• Key considerations:• nature of the discrimination• time period/frequency • vulnerability of Complainant• impact of discrimination on Complainant• totality of relationship between parties• goal of award is compensatory, not punitive• assessment must be contextual and fact-specific

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From B.C.: Kelly v University of British Columbia

Award for injury to dignity, feelings and self-respect:

“I do not accept UBC’s argument that it is not principled to conclude that a person with a life-long passion suffers more than someone without such a passion when they experience discrimination . Each case must be assessed on its individual circumstances. In this case, it is relevant and principled to consider that Dr. Kelly was pursuing an almost life-long desire to become a physician and that the loss of that opportunity had a serious and detrimental impact on him, particularly within the context of his family dynamics.

Dr. Kelly suffered deep humiliation and embarrassment as a result of the discrimination, which was ongoing for a significant period of time. …He experienced symptoms of depression….

Dr. Kelly experienced further embarrassment when applying for jobs and explaining why, with his educational background, he was not pursuing his medical career. …

Dr. Kelly …felt compelled to move back in with his parents, losing his independence…. relationships with his family and friends became strained, and he isolated himself socially.

Dr. Kelly was in a vulnerable position as both a student and resident who suffered from a mental disability, …and was dependent upon them to reasonably accommodate his disabilities in order to complete his residency.” (emphasis added)

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From B.C.: Kelly v University of British Columbia

Award for injury to dignity, feelings and self-respect: $75,000 (doubling the previous highest award)

See: http://canlii.ca/t/g2h3d

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From Alberta: The City of Calgary and CUPE, Local 38

Arbitration (by agreement with Alberta Human Rights Commission)

Key (particularly egregious) facts:• foreman Mutton was CUPE, Local 38 “big-wig”; Grievor was clerk• Mutton sexually fondled Grievor multiple times in November and

December 2010• once reported, management seriously mishandled investigation and

response; hostile to and unsupportive of Grievor• Mutton was criminally charged and pled guilty; sentenced to 90 days (on

weekends) and 2 years probation• January 2011 she filed grievance and made a complaint to Alberta

Human Rights Commission• she eventually suffered psychological breakdown; became suicidal and

was hospitalized August 2011, and may never be able to work again

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From Alberta: The City of Calgary and CUPE, Local 38

Held:

“…the only conclusion that can be reached is that there was a total failure on the part of those responsible to meet the obligations under the Collective Agreement, human rights legislation, occupational and health safety legislation and the City's Respectful Workplace Policy…

The City's failure is not just the failure of a single employee, Mutton, to respect the Griever. His conduct alone, for which the City is vicariously responsible represents a gross violation of the Grievor. … However his conduct is only the first of a number of serious missteps carried out by those charged with the obligation of protecting and supporting an employee harassed and abused in the workplace. ….The history of this matter demonstrates that at best there was a flawed observation of these [Policy] directions and at worse no compliance at all. In the result the Griever was a treated as a problem to be managed, as opposed to a victim to be supported, and it is that treatment  which contributed significantly to the ultimate state in which the Griever finds herself.” (emphasis added)

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From Alberta: The City of Calgary and CUPE, Local 38

Award (total net $805,000):

General damages: $125,000

Loss of past income: $135,630

Loss of future income: $512,149 less contingency/discount

Pension loss: $68,243 less discount

Special damages: $28,000 (therapy costs but not legal fees)

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From Alberta: The City of Calgary and CUPE, Local 38

“The Union put forward a strong case with respect to punitive damages in the circumstances of this case….  We might have been inclined to view these arguments with some favour, but one of the principles set out in the Whitten decision is that punitive damages are only awarded when the compensatory damages are insufficient to accomplish the purpose of retribution, deterrence and denunciation. In this case a significant award of compensatory damages has been made. If there was any need for deterrence we are of the view that an award at the level granted in this decision will accomplish it. We therefore decline to award punitive damages.” (emphasis added)

See: http://canlii.ca/t/g2w9s

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From Ontario: Morgan v Herman Miller

Key facts:• Morgan was employed by Herman Miller (furniture installation

business) from 2007 to 2010 • only black man employed there• complained of harassment/discrimination based on race• employer did not properly investigate his allegations• relationship had ups and downs; Morgan was openly critical • ultimately, Morgan was terminated, allegedly for spreading false

information about the employer's financial situation to co-workers• Morgan filed an Ontario Human Rights Code complaint for (1)

discrimination and (2) reprisal

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From Ontario: Morgan v Herman Miller

Held:• employer did not harass/discriminate against Morgan, but as

long as Complainant genuinely believes that his/her Code rights were being infringed, reprisal protection is available even if: • discrimination is not subsequently proven • no complaint has been filed under the Code

• Morgan held a genuine belief, and employer did not adequately address/respond to allegations (which in itself strengthened his belief)

• termination was a reprisal, because harassment/discrimination allegations and threat to sue influenced termination decision

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From Ontario: Morgan v Herman Miller

Award and remedy:

Damages for injury to dignity, feelings and self-respect: $15,000

Loss of wages: 14 months’ income (plus interest)

Future compliance remedies:“(e) Within 120 days from the date of this Decision, Herman Miller Canada Inc. shall confirm to the applicant in writing that it has retained a human rights expert of its choosing who has;

      (i)   assisted with the review and revision of its human rights policies, and that a copy of the revised human rights policies has been distributed to all of its Ontario employees; and

      (ii)   trained all of its Ontario employees holding the rank of manager or higher, and any human resources employees with respect to the revised human rights policy, the Code and how to

adequately respond to allegations of harassment and discrimination.

(f)       Within 60 days from the date of this Decision, Corrado Fermo shall confirm to the applicant in writing that he has completed the Human Rights 101 eLearning Module prepared by the Ontario Human Rights Commission which is available online at: http://www.ohrc.on.ca/hr101/.”

See: http://canlii.ca/t/fx556

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From Ontario: Wilson v Solace Mexican Foods Inc.

In wrongful dismissal action, Ontario Superior Court:

• held that disability (ongoing back problems) was a significant factor in decision to terminate without cause after 16 months

• awarded:• wrongful dismissal damages: 3 month notice period

• damages injury to dignity, feelings and self-respect: $20,000

Notable as the first reported decision where Superior Court has exercised Section 46.1 powers to make Human Rights awards since 2008 Ontario Human Rights Code amendments.

See: http://canlii.ca/t/g0nkm

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From Ontario: Fair v Hamilton-Wentworth District School Board

Key facts: • Complainant employed 1998 to July 2004; starting 2001,

developed anxiety disorder, depression and post-traumatic stress disorder (related to role as Supervisor, Regulated Substances, Asbestos and her fears of personal liability under Occupational Health & Safety Act)

• after periods of STD, commenced LTD in March 2002; cut-off in April 2004 at end of 2 year “own occupation” period

• Respondent said we have no suitable alternate position and terminated her in July 2004

• Complainant filed complaint in November 2004 but for various reasons (not her fault) it was not heard until 2012

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From Ontario: Fair v Hamilton-Wentworth District School Board

Held in 2012:

• Respondent failed to “actively, promptly and diligently canvas possible solutions to the applicant's need for accommodation”, given the cumulative effect of Respondent (in) actions

• took position that all other jobs were, in their own way, as “demanding”; rejected other options out of hand without consideration

• refused to meet with Vocational Rehabilitation Consultant to explore volunteer or work-hardening options

• failed to provide Complainant with list of essential duties of position• delayed meeting with Complainant to discuss return to work• after Complainant co-operated with IME request, Disability Management Co-

ordinator attempted to influence expert’s report• did not take steps to ensure it properly understood scope and effect of

medical restrictions

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From Ontario: Fair v Hamilton-Wentworth District School Board

“ ..the respondent was not attempting to obtain objective clarification of the applicant’s limitations but …to encourage the expert to conclude that the applicant was not worthy of accommodation.”

• from April 2003, Respondent failed to take steps to investigate possible forms of accommodation

• from June 2003, Respondent failed to offer the applicant available alternative work

Complainant requested reinstatement. Tribunal gave parties a chance to work it out….

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From Ontario: Fair v Hamilton-Wentworth District School Board

...but they didn’t.

At the remedy hearing in 2013, Respondent unsuccessfully argued:

• mere “procedural” breach did not merit a reinstatement order

• passage of time was, per se prejudicial (9 year delay which was not Complainant’s fault)

• her skill-set would have eroded over time

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From Ontario: Fair v Hamilton-Wentworth District School Board

Award and remedy:

Reinstatement:

“I conclude that the applicant should be reinstated (with appropriate adjustment to her length of seniority, banked sick days and other employment entitlements, if any) to a suitable position with the respondent as soon as reasonably possible. A suitable position is one which is at or equivalent to the PASS level 6, which is the level she was at when last employed with the respondent. The only medical restriction is that the position should not involve exposure to personal liability for health and safety similar to the potential liability caused by working with asbestos. The applicant should possess the basic general qualifications for the position, assuming a training period of up to six months.

The respondent shall provide a reasonable period (up to six months) of training, as required to prepare the applicant for the position.”

Lost wages: full-time wages from June 26, 2003 to reinstatement

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From Ontario: Fair v Hamilton-Wentworth District School Board

Incidentals:

• restoration of pension years of service• catch-up pension contributions• catch-up CPP (or compensation in lieu)• reimbursement of out of pocket expenses due to lost benefits• tax gross-up • pre and post judgment interest

Award for injury to dignity, feelings and self-respect: $30,000

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From Ontario: Fair v Hamilton-Wentworth District School Board

“…the remedy of reinstatement is always an option in human rights cases and the respondent ought to have been aware of that possibility.”

See: http://canlii.ca/t/fwkts

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Honourable mention from Ontario: Islam v. Big Inc.

Muslim restaurant workers filed complaints of:• discrimination because of race, colour, ancestry, place of origin,

ethnic origin and creed• discriminatory harassment and pressure to disregard religious

restrictions• poisoned work environment• failure to investigate employees’ written complaints of

discrimination• reprisal (reduced hours for two, excessive hours for one)

They won.

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Honourable mention from Ontario: Islam v. Big Inc.

In addition to the usual awards (lost wages, injury to dignity, etc.) the Tribunal awarded separate damages of $2,000 per complainant for the failure to investigate.

“In my view, the failure to investigate complaints of discrimination has an inimical effect on the public policy of fairness and freedom from discrimination embodied and promoted by the Code. The respondent who fails to investigate a complaint of discrimination essentially ensures that if discrimination is occurring, it will continue. Indeed, discrimination may be worsened if the message is given that the respondent tolerates a culture of impunity. …

Further, a failure to investigate a complaint of discrimination sincerely made must have the effect of worsening the situation of an individual who has complained in good faith, as it conveys an indifference to that individual’s situation and a denial of his or her dignity.” (emphasis added)

See: http://canlii.ca/t/g2bws

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The Final Word

Take every complaint or request for accommodation seriously and make sure complaints/requests are directed to the right people with the right skills to deal with them properly.

Make it a priority to implement and enforce strong policies, frequent and effective training, and meaningful protocols for reporting/investigation/resolution of issues.

Then follow those policies and protocols!

And seek expert help at the first sign of trouble…

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The Final Word

…because the potential risks, costs and consequences of Human Rights damages awards and remedial orders are:• wide-ranging• significant• costly ($, time, reputation and business)• intrusive/invasive• and (in some respects) unlimited

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Melanie Polowin

Partner   •   Ottawa

melanie.polowin@gowlings.com

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