In Ontario, presuming that the individual is governed by provincial and not federal law, there is a second manner of seeking a human rights remedy. Ontario amended its legislation on June 30, 2008 to allow civil claims for a breach of a human rights violation when included with another civil claim. Hence a plaintiff suing for wrongful dismissal, or any other relief, may also add a claim, where appropriate, for damages and other relief for a human rights violation.
Prior to June 30, 2008, civil actions alleging human rights violations were used to support an argument of a claim for breach of good faith and fair dealing as was contemplated in Wallace v United Grain Growers, discussed below.
Many cases will show claims for aggravated and/or punitive damages using the same factual basis, an issue which presents consideration given to the synchronization of such damage assertions.
The claims which have gone to trial to date have all involved a claim for damages for the loss of prestige and embarrassment. To date, no cases have considered a claim for reinstatement or arrears in income to the date of trial or a future income loss.
The legislation appears to allow such a claim as reinstatement, as section 46.1 contemplates other than monetary compensation, as it allows for:
- Damages for injury to dignity, feelings and self-respect; and/or
- Restitution other than through monetary compensation for losses arising out of the infringement.
If the concept of reinstatement is allowed, then both past income claim and a future claim, where reinstatement is denied, will follow. A summary in chart format of such awards appears here.
Human rights remedies offer a distinctly different and potentially much more powerful relief than the usual employment law cases brought by civil action. The following cases illustrate the potential of such awards.
A woman in Calgary, a victim of sexual harassment, recovered over $800,000 in her claim against her employer. 1
A second decision in Alberta allowed for a total damage award of $656,920 due to adverse treatment due to gender and retaliation. 2
An Ontario decision 3 initially granted 8 years back pay of $420,000 plus reinstatement due to the employer’s failure to accommodate the applicant’s disability by allowing for a return to work following her disability. 4 This decision was upheld by the Divisional Court and the Ontario Court of Appeal. The final total of back compensation was in the range of 12 years.
A person who alleged that he was terminated due to his age 5 was awarded in excess of 8 years pay. A similar case awarded nine years wage differential due to the denial of a promotion, also due to age. 6
An award of a potential 10 year income loss was made in 2001 by the Canadian Human Rights Tribunal due to discrimination on account of gender. 7
A comparable lost income claim of 10 years in addition to a prospective income loss of an additional 5 years totaling $280,000 due a perceived disability was granted by a the federal human rights tribunal. 8
The B.C. Tribunal awarded 6 years lost income of $385,000 to a medical doctor who had been delayed entry into a specialist program due to a mental disability. 9
A human rights tribunal in Prince Edward Island ordered damages for lost earnings in the sum of $425,000 to a minister who had been adversely treated by the Church. 10.
These are significant awards which are unparalleled in normal employment law claims based on the wrongful dismissal concept.
Compensatory awards for damages for personal indignity remain generally in the range in most jurisdictions of $10,000 to $50,000.
The human rights remedy is often the most powerful form of relief when the facts meet the definition of a human rights violation in the workplace. It is one which must be well understood for its full impact to be realized.
The awards for lost income calculated in this manner have been nothing short of gargantuan.
A claim which pleads a remedy based on such a human rights violation must consider which claim is pleaded as an alternative to the other.
A claim for pure human rights remedies such as lost income to the date of the hearing, reinstatement and/or a future damage loss is logically inconsistent with a wrongful dismissal action.
The former seeks to set aside the dismissal and the latter accepts it and seeks damages.
Further, it must be recalled that no punitive damages are awarded in human rights complaints. Costs are generally not allowed in human rights administrative proceedings, but are allowed in a civil action to enforce the same obligation. The limitation period for the civil proceeding seeking a human rights remedy is two years, whereas the Ontario Human Rights Code sets the time period as one year.