There are four essential forms of direct relief available to the complainant which may be awarded, which are common to all Canadian jurisdictions. Certain statutes also allow for awards of punitive damages and costs.
The first is the award of compensatory damages for “injury to dignity, feelings and self-respect" 1 which may flow from the breach of the human rights statute.
Certain jurisdictions have set a statutory cap on awards of compensatory damages. These include Manitoba, Saskatchewan and Canada. There is no cap on lost income claims.
This may also arise due to the existence of a “poisoned work environment” and/or perhaps a failure to investigate a complaint, 2 and/or further due to a general reprisal 4 This may also follow where a person has been terminated due to retaliatory conduct in a general reprisal claim. There may also be a claim for a future loss of income, beyond the date of the hearing.
As is also reviewed subsequently, the theory of assessing the lost income claim is much different from a wrongful dismissal claim or breach of employment contract. There are advantages and disadvantages to this distinction. It is important to understand the differing approaches.
The third remedy is reinstatement or instatement to a position of employment.
The fourth form of order is non-monetary relief which may be made against the employer which is designed to remedy the wrong-doing on a principled basis, which is described as public interest remedy. 5 Also a common statutory remedy is to allow the tribunal the right to order that the offensive behaviour cease.
A finding of an Ontario Human Rights Code violation in employment will give rise to other consequences if the employer is engaged in business dealings with the Ontario government. Such a finding will allow the government to assert any such contract is in breach.6
Although human rights jurisprudence does not allow for a punitive damage award, certain Canadian jurisdictions do allow for an award of punitive damages by the operative statute.
The Charter in Quebec allows for an award of punitive damages where the conduct is reckless, that is, a standard less than intentional.
Manitoba allows for punitive damages where the questioned conduct shows malice or recklessness up to $5,000 and $25,000 against an individual or corporation respectively.
The Yukon also provides the same remedy of a punitive award without a stated cap where the questioned conduct was found to be malicious.
N.W.T. allows for punitive damages up to a cap of $10,000. Nunavut has no set maximum sum but its statute allows for such incremental damages where the conduct again shows malice or reckless behaviour.
Saskatchewan allows for an incremental award where the behaviour fits the pattern of a conduct meriting a punitive award by behaving “wilfully and recklessly” yet places a cap on the total award of compensatory and punitive damages at $20,000. 7
The Canadian Human Rights Act does not use the precise vocabulary of “punitive damages” but the Act allows for an increased damage award of “special compensation” up to a further sum of $20,000 when the conduct in question is wilful and malicious.
The general view of the remaining jurisdictions is that there should be no punitive element in awards in human rights cases.
Legal costs are generally not awarded to the successful complainant nor against the unsuccessful one. It is to be recalled that most jurisdictions are not “user initiated” and generally the complaint is brought by the relevant human rights commission.
Quebec’s Charter does allow for a costs award in favour of the Commission. Newfoundland’s statute allows for “costs as appropriate”. Yukon also allows for a costs award. Nunavut’s statute provides authority for such an award where the claim has been “knowingly false”, or if the investigation has been unduly hampered by the conduct of either party. This presumably does not require a liability finding on the substantive complaint. B.C.’s act provides for a costs award where there has been “improper conduct”.
These issues are reviewed in detail in the chapters which follow.