May a court award both aggravated and human rights compensatory damages based on the same facts?
This issue was addressed by the Ontario Court of Appeal in 2017 a case in which the trial judge had awarded both aggravated damages of $60,000 and human rights compensatory damages of $20,000. 1 Both awards were maintained on appeal. The argument that one should offset the other did not succeed. Although each claim showed some degree of factual overlap, they each served distinct and different purposes:
While there is an overlap of conduct, the conduct relating to the award of moral damages and that relating to Code damages for sexual harassment is not identical. An example of bad faith conduct meriting moral damages given in Honda, at para.59 is attacking an employee’s reputation. Zochem submits that it did not engage in an attack on Doyle’s reputation at the time of dismissal. However, telling Doyle during the termination meeting that she was being “irresponsible” towards Rogers and that his reputation was on the line was in effect an attack on Doyle’s reputation for veracity. This comment would be a consideration in the award of damages for bad faith in the manner of termination, but not for sexual harassment.
[45] More importantly, the two judgments on which Zochem relies in support of its submission have no application to Code damages. In the first, Honda, at para. 60, the Supreme Court held that the award of moral damages duplicated the punitive damages, and that “[t]he Court must avoid the pitfall of double-compensation or double-punishment that has been exemplified in this case.” In the second, Strudwick, at para. 104, Wallace damages were deducted from aggravated damages to avoid overlap.
[46] Neither of these decisions supports the submission that damages under the Code should be deducted from moral damages. In fact, in Strudwick, a separate award for Code damages was not deducted from either moral damages or aggravated damages.
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Moral damages are awarded as a result of the manner of dismissal, where the employer engages in conduct during the course of dismissal that is unfair or is in bad faith, that caused mental distress: Honda, at para. 57. As indicated in that decision at para. 56, the normal distress and hurt feelings resulting from dismissal are not compensable.
[48] In contrast, Code damages are remedial, not punitive in nature, and compensate for the intrinsic value of the infringement of rights under the Code. Such damages are compensation for loss of the right to be free from discrimination and the experience of victimization:
The same issue was before the Court of Appeal one year prior. 2 The Court of Appeal allowed claims of $70,000 in aggravated damages, $55,000 in punitive damages, $40,000 for the human rights violation and the tort of intentional infliction of mental suffering of $35,000. The latter award contained a component of emotional distress compensation of $5,000.
The notional distinction between the first three awards is arguably and logically attached to differing purposive rationales, yet the intentional tort claim does seem to be duplicated by the aggravated damage award. To this the Court of Appeal stated, referring to the three compensatory awards:
I am aware of the concerns of double recovery under this head of damage, given the role Mr. Hoffman’s misconduct plays in the determination of damages for the Code violations and aggravated damages. Nevertheless, I would award an additional $5,000 to address Ms. Strudwick’s pain and suffering, and loss of enjoyment of life.
Similar reasoning followed in an October 2021 case in which the trial judge awarded aggravated, human rights and defamation damages in the sums of $75,000, $35,000 and $20,000 respectively, in addition to a punitive damage award of $60,000. 3 In this case, the trial judge stated that his decision to set the defamation award at $20,000 had been influenced by the other awards made a trial:
Had I not made awards for moral damages and discrimination, I would have awarded more for defamation
This would appear to contrary to the Court of Appeal decisions above.
The overlapping awards are show in chart form here.