General Reprisal

However, in certain cases the intent of the wrongdoer remains relevant. Such is the case in a general reprisal claim. ¹

It is generally conceded that to prove general reprisal, intent must be shown. That being said, the intent to reprise may be inferred from the facts.

A good example of this is found in Smith v Menzies in which the finding of general reprisal was influenced by the close proximity between the complaint of offensive conduct and the dismissal the following day and the lack of any credible evidence from the employer to explain this decision.

It often is a matter of credibility. ²

To constitute reprisal, it is sufficient if the conduct is “at least in part” due to the complaint or threatened complaint. ³

As stated by the Ontario Tribunal in Murchie:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

[174]  The intent to reprise may be inferred from the facts and is a matter of credibility, see: Jones v. Amway of Canada Ltd.,[2002] O.J. No.1504 (QL) [ CHRR Doc. 02-177] (Div.Ct.).

To show general reprisal, the complainant must show a link between the retaliatory conduct and the threat of or the filing of the complaint, which is normally proven by inference as direct evidence is invariably non-existent. The second aspect of the test is to show that the offensive conduct is, at least in part, an intentional response to the complaint. ⁴

There has been some issue as to how liability for such reprisal should be established. Certainly this will follow where the intent of the employer has been proven, as above.

One line of thought is that the issue of reprisal should be viewed from the perspective of the complainant. Would it suffice that the conduct of the employer may be reasonably interpreted as retaliatory to allow for such a remedy, as was the decision of the Canadian Human Rights Tribunal?  ⁵This was also the decision of the Ontario Board, ⁶as has been accepted by the B.C. tribunal, ⁷finding that the perspective of the complainant should be the test, not the intent of the employer. This will particularly be the case where there is an ongoing employment relationship. For this reason, complaints of reprisal must be “dealt with speedily, efficiently, thoroughly and seriously”⁸

It does appear unusual that a statutory violation of retaliatory conduct, seemingly an intentional act, would be determined by the views of the employee.

The Board’s decision in Entrop was ultimately heard by the Ontario Court of Appeal. This court did not debate the test for reprisal on the issue above. It is clear from the Court of Appeal decision, however, that it viewed the findings of the Board as referring to conduct which was intentional. ⁹

Notwithstanding the line of cases referenced in B.C., it would appear logical that for there to be a finding of reprisal, it is the intent of the employer that should be proven, not what a reasonably minded employee would believe to be so.^{10 1112 13} This does appear to the law in most jurisdictions today.

It is not necessary for the complaint actually to be filed. It is sufficient that there was a threat to do so. ¹⁴ At one time, the sole exception to this principle was the law in B.C., which mandated that there be an actual complaint filed. Oddly enough, the threat to do so did not then not suffice. ¹⁵

To succeed on a general reprisal claim, the substantive claim which has been threatened or actually brought, need not succeed. ¹⁶The applicant cannot threaten or bring a claim which she knows lacks merit. He must, however, have a genuine belief in its merits. ¹⁷

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1. The term “reprisal” can be confusing. The term “general reprisal” is used to refer to retaliatory actions taken against an employee for filing a human rights complaint. When reprisal is used in the context of such actions taken against an employee for failing to respond to a sexual solicitation it will be referred to as “sexual reprisal”
2. See Jones v. Amway of Canada Ltd. Ont. Div. Ct.
3. Murchie v JB’s Mongolian Grill (Hendriks); deSouza v. Gauthier (2002), 43 C.H.R.R. D/128; Elkas v. Blush Stop Inc. Ont. Bd. Inq. and Entrop v. Imperial Oil Ltd. (No.7) (1995) Ontario Bod of Inquiry, affirmed on other grounds 108 O.A.C. 81 (Ont. Div. Ct.) not reported, and reversed on other grounds OCA
4. Walsh v Mobil Oil
5.   The Canadian HRT found that the test was not intent but rather whether the retaliatory conduct could be “reasonably perceived” as such, as in Warman v Winnicki.
6. Entrop v. Imperial Oil Ltd. (No. 7) (1995) Ont. Bd. Inq.
7. Talkkari v. City of Burnaby and others, 2005 BCHRT 68, paras. 45-47; C.S.W.U. Local 1611 v. SELI Canada and others (No. 3), 2007 BCHRT 423
8. Entrop v. Imperial Oil Ltd
9. The Board found that at least some of these actions were taken deliberately by Imperial Oil in retaliation for Entrop’s filing of a complaint. That finding is reasonably supported by the evidence. In my view, the evidence on Entrop’s reassignment together with the finding of general reprisal support the Board’s conclusion that Imperial Oil’s conduct was wilful and reckless and thus justifies the award of damages for mental anguish. I would therefore not give effect to this ground of appeal. (as the Code then stood, mental anguish damages were allowed –ed)
10. This was also found as the law in Jones v. Amway of Canada Ltd., in which the Divisional Court stated “we have great difficulty appreciating how there can be a breach of section 8 without an intent to perpetrate the prohibited conduct…”
11.   The Alberta Court of Appeal in Walsh v Mobil came to the same conclusion.
12. The Nova Scotia decisions have also required intent to be proven, as in Smith v Capital District.
13. The Nova Scotia Court of Appeal came to the same view, although it did not affirmatively decide this issue.
14. Murchie v JB’s Mongolian Grill (Hendriks)
15. Cariboo Chevrolet v Becker. This decision was based on the wording of the B.C. statute. It made no sense whatsoever.  The legislation has since been amended.  
16. Noble v. York University (Gottheil) This provides a good review of the tests referenced above. The actual reprisal claim failed in this instance.
17.   Bertrand v. Primary Response, 2010 HRTO 186 (CanLII) (Overend).