Canada

Damages: Injured Feelings: Canada

Canada maintains a legislated cap on the sum to be awarded for compensatory damages of $20,000. 1

As noted elsewhere, the federal act does have a provision which allows for an additional damage award for what is, in substance, punitive damages. The vocabulary used is “special compensation” for conduct which is wilful or reckless. Sexual harassment is routinely considered as such conduct. There is, however, the same legislated cap on this incremental sum to be awarded of $20,000.

The amendments allowing such two awards came into effect in June of 1998. All awards prior to this date should be read with this in mind. 2

As recently as 2009, the Canadian Human Rights Tribunal offered the view that awards in the range of $12,000 to $15,000 are reserved for “the most egregious discriminatory acts”. 3This is hard to reconcile with the January 2018 Ontario award of $200,000. 4

Certainly where the questioned conduct is unwelcome or reasonably to be interpreted as such, the special award is appropriate. An award of such special sum of $2,500 was made in addition to compensatory damages of $5,000 in the context of a single issue, albeit with a physical altercation of a “brief duration” 5 Additional damages were also awarded for retaliatory conduct in the sum of $2,000 plus a further $500 as “special compensation”.

Each of three complainants were awarded $10,000 as “special compensation” given the vulgar and offensive remarks and propositions made by the personal respondent. 6

An award of $12,000 of compensatory and $15,000 of “special compensation” 7 was made in a context of severe and repeated contact, inside and outside the workplace, causing fear for the complainant’s well-being and unwanted physical contact on one occasion.

There is no justification possible for a fixed cap on such an award. This must be revised.

See the summary of such awards here.

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Footnotes

  1. S. 53(2)5 Canadian Human Rights Act
  2. Prior to June 30, 1998, the total sum allowed to be ordered of compensatory and “special” compensation was $5,000. Conduct which transpired before this date was subject to this cap
  3.   Berberi v Canada. Further issues arose which are not relevant to this issue, as noted in a subsequent hearing before the tribunal and the Federal Court, Trial Division.
  4. Singer Shoes referring to the Divisional Court decision of 2019
  5. Cassidy v Canada Post 2012 Canadian HRT
  6. Woiden v Lynn One of the complaints was based on family status.
  7.   Bushey v Sharma This award was made against the personal respondent and was found to be solely attributable to his offensive actions as a separate sum had been paid by the employer.