Workplace Sexual Harassment

Ontario Civil Action to Enforce Human Rights

A civil action to seek a human rights remedy is permissible with an accompanying claim, expected to be, but not limited to, a wrongful dismissal claim where the employer is provincially regulated.

The earlier decided cases did not involve sexual harassment claims 1.

The awards made to date have reflected the sums traditionally expected in human rights cases. There has also been an acceptance of the human rights test to find liability, namely that the human rights issue need only be influential.2

A trial decision allowed an award of $25,000 of damages recovered for a Code violation of sexual harassment.3

The issue on appeal focused on the additional award made of $60,000 for moral damages, which was upheld by the Court of Appeal. The award of human rights damages was seen as one serving a distinct purpose although the “same conduct may ground separate awards”. Human rights awards are designed, the court noted, to compensate for the loss of “the right to be free from discrimination and the experience of victimization”.

Medical evidence, while preferable, has not been required to support the damage claim, based on the authority of the Supreme Court of Canada in Saadati v Moorhead.

There has been no relief argued for reinstatement as part of the civil process to date. There is no impediment to such an award as the legislation speaks to the nature of the relief as including restitution as follows:

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. 2006, c. 30, s. 8.

If such a remedy is sought, presumably this would be accompanied by a claim for lost income to the date of the award and/or a future lost income should the reinstatement award not be allowed. A review of such claims is seen here and also presented here

The damage claim for wrongful dismissal, should this be the accompanying claim, would then be argued in the alternative.

It is possible to sue civilly and also maintain a human rights complaint under the Code provided that there is no pleading made in the civil action for an alleged infringement of a right under the Code.

There is no impediment to pursuing both remedies contemporaneously where the underlying facts are the same. The issue is whether the civil claim seeks a code remedy. If it does not, the two proceedings may be sustained.4

The claim should take care to avoid any reference to the Code to ensure the two forms of relief may proceed without impediment.