There is no dispute that the adjudicator appointed to hold an Unjust Dismissal hearing has the authority to award aggravated and/or punitive damages.

This was confirmed in by the Federal Court in a judicial review application from an adjudicator’s award in July of 2013. ¹ The award under review had allowed the employee $85,000 in aggravated damages and $100,000 in punitive damages. The review was based on the standard of reasonableness, given a question of mixed fact and law. ²

The judicial review application did not contest the right of the adjudicator to make the award, rather, it was limited to whether the sums awarded were reasonable.

The determination of such awards follow common law precedents. ³

In this case, the aggravated damage sum was upheld. It was based on the finding that the employer made unfounded allegations which impacted the employee’s reputation in the local community and his professional standing. These assertions were widely distributed publicly and maintained at the hearing. The employee’s health was also adversely effected.

The attack on the punitive damage award also failed. The Federal Court found that the adjudicator had found that the conduct of the employer was “reprehensible, dishonest, malicious, deliberate, despicable, deceitful and in bad faith.” The adjudicator has properly examined “the blameworthiness of the applicant’s conduct, the vulnerability of the respondent - for example, that he was on medical leave while the Executive Director continued his ‘vicious campaign of intimidation’ - and the deliberate harm directed specifically at the respondent.”

An award was made of $35,000 for aggravated damages in a 2014 case by the adjudicator. Bad faith on the part of the employer was found as it (1) fabricated a story that the employee had abandoned her job: (2) dishonestly stated that the employee had not been at work for seven days without any explanation; (3) advised the short term disability insurer that the complainant had not been terminated and that she was expected soon to return to work; (4) to advise the employee to ignore the letter and report to work and then deny her the right to work; (5) advised a reporter falsely that the employee had paid herself money to which she was not entitled and (6) terminated the employee while on sick leave. ⁴

A similar review of an adjudicative award followed in Federal Court in 2015. In this case, the initial decision allowed for aggravated and punitive awards in the sums of $50,000 and $25,000 respectively. The employer challenged liability and quantum of these awards. ⁵

In this case, the first hearing had determined that the conduct of the employer was “malicious, harsh and vindictive” and showed “contempt for the judicial process”, the employee had been bullied and intimidated throughout the proceedings and had used allegations to justify termination which were “false and even fraudulent”. An unsubstantiated complaint was also made by the employer to the police. ⁶ The company also provided Canada Revenue Agency with two false T-4 statements which had inflated her income, causing her administrative issues with CRA. It further provided false information on the Record of Employment which denied her EI benefits. Both awards were upheld. The complainant had provided no medical evidence.

The Federal Court also considered and in this case, allowed a judicial review application from an adjudicative award allowing the sum of $500,000 for punitive damages. In this case, the award was set aside and a new hearing was ordered. ⁷ The Federal Court decision was reasoned on bias although it did also note that the sum awarded was not in line with prior decisions. Bias was based on many apparent indiscretions of the adjudicator, including communications privately to the self-represented complainant.

An award of $10,000 of aggravated damages was made in a September 2022 first level award before the Canadian Industrial Relations Board. ^{8 9} The complainant had been unjustly accused of fraudulent conduct. This was the employee’s first employment following graduation from university. He was concerned about the impact of these allegations upon his reputation and future career and his intention to become a commercial pilot.

A further CIRB decision allowed a punitive damage award of $50,000. ¹⁰ The wrongdoing to support this award included (1) acting contrary to the Canadian Human Rights Act by obtaining and using confidential medical records, (2) requiring the employee to attend an independent medical and to disclose her complete medical file prior to considering accommodation, this being determined to be adverse treatment due to a disability. There were other failures in the accommodation process. ¹¹ The evidence of emotional harm was found to be lacking to support an award of aggravated damages.

Aggravated and punitive damages as awarded in common law cases may be used in this context to support the principles of the award.