Presumption of Harm
Early decisions spoke to the concept that there should be a presumption of making an award of special and general damages. 1
This theme has continued. The violation of a human right should be deserving of an independent damage claim. 2 The “loss of the right to be free from discrimination and the experience of victimization” is compensable in itself, 3 as “the intrinsic value of the infringement or rights under the Code”. 4
A recent decision of the Federal Court of Appeal spoke to this issue. The decision is significant as it set aside the reasons of the Public Services Labour Relations and Employment Board as unreasonable, which is unusual, given the deference normally given to such a specialized tribunal.
At the initial hearing, the employer, Canada Border Services, agreed that the applicant had been sexually harassed and assaulted by her co-worker. Two grievances had been filed. The Board dismissed one, and on the second, it found that the employer had failed to provide a harassment free workplace but declined to make any damage award. It did so, notwithstanding that it had found that the actions of the co-worker were “reprehensible”, “a vulgar prank” and that the applicant had been demeaned.
Although not directly stated in the Board’s reasons, the Court of Appeal found that the rationale of the Board for refusing compensatory damages was that the conduct of the co-worker was not the sole cause of the applicant’s medical condition. This argument had not been advanced by the employer and it, in fact, had admitted that the applicant had suffered harm from the questioned conduct.
This decision of the Board was found to have been unreasonable and was set aside.
There are three important points which come from this decision of the Court of Appeal.
Firstly, the Board’s finding that the injuries suffered by the victim were not due solely to the conduct of the wrongdoer, and hence not compensable, was an error of law.
Secondly, it found that the purpose of the award of non-pecuniary damages includes a remedy to “vindicate a claimant’s dignity and personal autonomy and to recognize the humiliating and degrading nature of discriminatory practices”. The decision of the Board in denying compensation where such conduct enhances a pre-existing condition or “contributes to harm caused by another source” was hence contrary to the purpose of the remedy and unreasonable.
Thirdly, the Court of Appeal returned to the acceptance of the arbitral jurisprudence that once pain and suffering caused by a discriminatory practice is established, damages should follow. This is an important point and one accepted by all human rights tribunals.
The case was remitted back to a second Board for the damage assessment.
Factors to be Considered
The factors to be reviewed in setting the damage award when the damage was not presumptively set were the “humiliation; hurt feelings: the loss of self-respect; dignity and confidence by the complainant; the experience of victimization; and the seriousness of the offensive treatment”. 5
The same principle was used by an Ontario civil court assessing damages under the code by civil action, noting that the sole evidence to support such a claim was the plaintiff’s deposed evidence that she was “shocked, dismayed and angered” by the conduct and also in the words of the trial judge “she referred vaguely to ‘the loss of dignity and loss of feelings of self-worth’”. 6
The damage claim was based on the wording of the Code allowed for “compensation for the loss of the right to be free from discrimination and the experience of victimization”. 7 The Ontario Court of Appeal agreed with these principles in its 2016 decision, 8 in setting aside the trial judge's award of $20,000 in compensatory damages and increasing this award to $40,000.
Need for Medical Evidence
Of some note to this issue is the recent Supreme Court of Canada decision which concluded that there was no mandatory requirement to prove a recognized psychiatric injury. The instant case was a claim in negligence for damages for mental suffering due to a car accident. The Supreme Court reversed the Quebec Court of Appeal and concluded professional medical evidence, while useful, was not a mandatory step to prove the damage claim:
To be clear, however: while relevant expert evidence will often be helpful in determining whether the claimant has proven a mental injury, it is not required as a matter of law. Where a psychiatric diagnosis is unavailable, it remains open to a trier of fact to find on other evidence adduced by the claimant that he or she has proven on a balance of probabilities the occurrence of mental injury. And, of course, it also remains open to the defendant, in rebutting a claim, to call expert evidence establishing that the accident cannot have caused any mental injury, or at least any mental injury known to psychiatry. While, for the reasons I have given, the lack of a diagnosis cannot on its own be dispositive, it is something that the trier of fact can choose to weigh against evidence supporting the existence of a mental injury.
The principles to be applied in setting the damage award for injured feelings and loss of dignity and self-respect were seen generally as follows: 9
- the objective seriousness of the conduct;
- and the effect on the particular applicant who experienced discrimination: 10
Aggravating Factors
It was noted that dismissal from employment is generally regarded as more serious than an isolated comment. Similarly, the more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect. Damages will be generally at the higher end of the range when the applicant has experienced significant consequential emotional issues. 11 Those issues relevant to this latter issue were expanded as summarized below in the review of sexual harassment damage awards: 12.
The Commission provided a number of cases which set out the criteria to be used in assessing the appropriate quantum of general damages. These factors include:
· Humiliation experienced by the complainant
· Hurt feelings experienced by the complainant
· A complainant's loss of self-respect
· A complainant's loss of dignity
· A complainant's loss of self-esteem
· A complainant's loss of confidence
· The experience of victimization
· Vulnerability of the complainant
· The seriousness, frequency and duration of the offensive treatment
In addition where the allegations made have received publicity, this will allow for an increment in the damage sum awarded. 13
There are several further principles which have emerged as guideposts for the determination of fair damage awards for emotional harm and injured feelings.
The purpose of such an award to restore the victim to their former position and yet to avoid overpaying in the process. The award should not be high as to be “windfall compensation”. 14
This being said, the award must be significant enough to avoid “minimizing the impact of the wrongdoing”. 15 The award must also be intended to prevent future discrimination and “act both a deterrent and an educational tool”. 16 17
The damage awards will reflect the particular circumstance and emotional angst suffered by the victim, particularly in pregnancy cases in which it is obviously very difficult to find alternate employment and the degree of personal suffering may be more intense.
It has been noted that the manner in which the employer has responded to the claim should be a factor in determining the quantum of the sum to be awarded as compensation. In addition, the existence of a harassment policy and its enforcement 18 will also be considered in this context. 19
None of the above words, however, is particularly helpful in determining the range of expected awards in real dollar terms. The sums awarded are reviewed below to provide some realistic expectations.
While it may be true that the principle of stare decisis is not applicable to administrative decisions, in the real world the awards tend to follow an apparent pattern 20 and indeed such is the synthesis of the cases, although there is a noticeable difference in the expected range from jurisdiction to jurisdiction.
Tort Law Comparator
There is also a significant distinction between the sums typically awarded in common law tort cases and similar awards made in human rights cases. This was the subject of debate in the initial review 21 of the Alberta tribunal’s decision with respect to an award of $25,000, 22 in that this sum was beyond the then expected range of a human rights compensatory sum for injured feelings.
The court, upon the first review of the tribunal decision, expressed the view that tort cases “could provide guidance on the quantum of damages” to be awarded in the human rights venue. 23The Court of Appeal declined the invitation to comment upon such use of such tort awards for psychological harm. It did observe that sums awarded 24 were “on the low end” of what it, that is, sitting as a civil court, would have considered proper.
The award is similar to the tort concept but the reality is that the sums awarded have been, for the most part, dramatically lower that the awards made in a civil case. One might ask why this should be so. There is no logical reason for such disparity.
Financial Status
The financial status of the respondent has no relevance to the award, 25 that is, the difficulty the respondent may have to pay the award. The tribunal will consider all relevant factors. The fact that the incident may be an isolated occasion and was pre-meditated and no medical evidence was led, may all be factors in reducing the size of the award. 26
Recent Decisions Showing Higher Trend
Recent decisions have dramatically altered the range of high side awards. The Ontario tribunal has ordered sums in the range of $150,000 to $200,000 for admittedly unusual fact situations of exceptional abuse, yet the expected lower end range has also increased significantly. One case decided in May of 2020 awarded $50,000 for damages, including reprisal, for conduct which was described as "not egregious".27
A 2021 decision in British Columbia, not in a sexual harassment case, allowed for an award of $176,000 after a 20% discount for compensatory damages for adverse treatment due to race, which was a startling award.
Also a recent decision in Manitoba granted compensation in the sum of $75,000 for adverse treatment due to gender preference. The prior maximum award had been $20,000. 28
Statutory Caps
Three jurisdictions have now imposed caps on the sum to be awarded for injury to dignity, feelings or self-respect. Canada sets this limit as $20,000 plus has a second maximum for damages for reckless conduct at $20,000, incremental to the first. Saskatchewan also has a limit of $20,000 which also encompasses punitive damage awards. Manitoba has now imposed a similar upper end of $20,000 to compensatory damages plus $5,000 for punitive damages against an individual and $25,000 against a business.
Damages for lost income in all jurisdictions have no ceiling.
A review of damage awards made is presented here in chart format.