Damages Injured Feelings: Ontario

In Ontario, the modern damage awards tend to cluster in the range of $20,000 to $25,000. The broad spectrum has been noted to be from $12,000 to $50,000, ¹ the award being affected by the factors as discussed above and also whether there was a reprisal, which may or may not be considered as an independent award. ²The award has also been influenced by whether the victim suffered a loss of employment, notwithstanding that this may lead to a discrete claim.

Of some note is the recent decision of the Ontario Court of Appeal assessing the employee’s appeal of the award of $20,000 as human rights damages for adverse treatment due to a disability and the failure to accommodate the plaintiff’s loss of hearing. ³The court overruled the trial judge and awarded the sum of $40,000, based on the impact upon the plaintiff, her vulnerability and that the plaintiff did not protest the offensive action in fear of losing her employment. ⁴

One of the highest awards made to date has been $150,000 ⁵ to one complainant and $50,000 to a second in a particularly unattractive fact situation.

Both complainants were migrant workers from Mexico in Canada on temporary work permits and threatened with termination and hence deportation, failing a willingness to comply with the owner’s demand for sexual favours. The tribunal found the conduct to be unprecedented. The award was made against the owner of the business personally and against the company. The second victim, 22 years old, was required to leave Canada and return to Mexico. ⁶

The high side award remains at $200,000 made by the Tribunal and upheld by the Ontario Divisional Court to compensate a woman for repeated events of sexual harassment. The applicant was employed with the company for some 29 years and resided in an apartment also owned by a related company. She was the sole supporter of a disabled son. She was required to submit to various forms of sexual demands, including sexual intercourse, over a period of 18 years. Following her report of this conduct to the police, she faced eviction. The criminal charges were dismissed.

Ontario’s Human Rights Code prior to June 30, 2008

Ontario’s present Code became law as of June 30, 2008. It is important to understand the issues in the historic interpretation of the prior Code in the use of such precedent damage awards under the former Code in the modern context as it may be confusing to reference certain of such past authorities today.

The former code, unlike the modern version, contained a provision was described an award for “mental anguish” due to wilful or reckless conduct and set a cap for such an award at $10,000. Many early decisions misconstrued this provision as setting a maximum sum for any award of compensatory damages.⁷

This issue was ultimately resolved as late as February of 2001 ⁸when it was determined that this statute allowed for awards of general damages without a ceiling in addition to the “mental anguish” $10,000 cap as set out in the statute. ⁹

For these reasons, readers of cases under the former Ontario Code should be alive to the historical issues as noted above. Only cases which clearly embrace the authority of the Board to order general damages over and above the $10,000 mental anguish award should be used in the modern context.

Secondly, to have received an award of “mental anguish”, it must be recalled that the complainant was formerly required to prove conduct which met the test of “wilful or reckless”. ¹⁰ Such awards were made only where “there was a relatively high degree of mental pain and distress”^{11 12}

Right to Sue Civilly in Ontario

Ontario allows for a civil action to seek a human rights remedy where there is an accompanying claim, expected to be, but not limited to, a wrongful dismissal claim where the employer is provincially regulated.

To date the trial decisions ¹³ have reflected the sums traditionally expected in human rights cases. There has been an acceptance of the human rights test to find liability, namely that the human rights issue need only be influential. ¹⁴.

Medical evidence has not been required to support the damage claim. ¹⁵

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. ¹⁶

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

A summary of these cases may be found here.

👤 About the Author •
📚 Human Rights Index •
🎥 YouTube •
⬆️ Back to Top

1. Sands v Moneto Marketing HRTO; Smith v The Rovers Rest ; Vipond v. Ben Wicks Pub and Bistro [2013] HRTO 695. This should by no means be interpreted as a cap.
2. Garofalo v Cavalier Hair Stylists, a January 2013 decision of the Tribunal (Bhattacharjee)
3. Strudwick v Applied Consumer & Clinical Evaluations
4. This was a civil action seeking a human rights remedy. This sum was in addition to awards made for the intentional infliction of mental distress, aggravated and punitive damages. The defendant had been initially noted in default and was unable to set aside the liability issue on the default. The subsequent trial decision was one of a damage assessment only.
5. Tribunal (Hart) in O.P.T. and M.P.T v Presteve Foods Ltd. and Pratas
6. ” In this case, I have found that when alone in the house in Leamington with O.P.T., the personal respondent abused his position of power and authority over her to require her to perform fellatio on him on three occasions and to penetrate her with his penis on another three occasions. O.P.T. felt compelled to comply with the personal respondent’s demands on the basis of his threats to send her back to Mexico, when she needed her job in Canada in order to help support her two children.”.
7. Kearsley v St. Catharines by the Board of Inquiry, chaired by a former Supreme Court of Ontario Justice, Mr. Dennis O’Leary.
8. the Divisional Court in Ontario Human Rights Commission v Shelter Corporation  
9. This issue was still being debated as late as 2008, in ADGA and Lane 
10. Professor Cumming, then sitting as an ad hoc Board, defined “recklessly” as conduct, which is “such as to evince disregard of or indifference to its consequences, that is, the conduct is done with rashness or heedlessness; it is done wantonly”, without regard for the possible injurious impact on the complainant: Cameron v. NelGor Castle Nursing Home (1984), 5 C.H.R.R. D/2170, at D/2198.
11. Board of Inquiry in Ketola v Value Propane (Garfield)
12. These awards were essentially punitive in nature, as per the Divisional Court in ADGA and Lane in which $10,000 for mental anguish was awarded plus $35,000 for compensatory damages.
13. Wilson v Solis Mexican Foods due to a failure to accommodate a physical disability; Bray v Canadian College of Massage and Hydrotherapy for breach of family status and sex; in Partridge v Botony Dental due to the termination following a return from maternity leave. Berkhout v 2138316 Ontario Inc., [2013] O.J. No. 1125 – Small Claims Court in which $15,000 was allowed, as referenced in Bray. (gender) Silvera v Olympia for racial and gender violations.
14. As in Wilson.
15. Wilson and Bray.
16. Moreland v. St. Michael’s Hospital, 2012 HRTO 2262 (CanLII), 2012 HRTO 2262 , and Baker v. Sears Canada, 2009 HRTO 1014 (CanLII), 2009 HRTO 1014  Roycroft v Premier Salons (Martin)