The word “reprisal” can lead to confusion as there are two types of such retaliatory conduct often described as “reprisal”. The first is such actions taken by the employer in response to the filing or the threatened commencement of a human rights complaint. To make the analysis clear, this is referenced as “general reprisal”.

The second form of reprisal is conduct of the employer or an individual against a person who has not acceded to demands for sexual favours. This conduct is generally defined as a form of sexual harassment which for this purpose, it will be referenced as “sexual reprisal”. ¹

General Reprisal

All Canadian jurisdictions prohibit sanctions being taken against an individual who has commenced a human rights proceeding. The statutory wording varies from province to province and territory to territory but the intent is the same, to allow every person the ability to enforce his or her rights under this act. Certain jurisdictions provide for wider protection which is given to any person who assist the complainant in the bringing of the case with or without testifying.

Independent Claim

There will be issues, however, as to how this remedy is enforced. The most significant question is whether the general reprisal remedy is a stand-alone claim which is independent of success in the substantive complaint. ²

The same conclusion was reached in a 2010 Ontario tribunal case. The allegation of adverse treatment failed yet the reprisal claim succeeded. An award was made for damages to dignity and lost income. ³

Intent

It is generally conceded that to prove general reprisal, intent must be shown. The intent to reprise may be inferred from the facts. A good example of this is found in Smith v Menzies in which the finding of general reprisal was influenced by the close proximity between the complaint of offensive conduct and the dismissal the following day and the lack of any credible evidence from the employer to explain this decision. It often is a matter of credibility. ⁴

To constitute reprisal, it is sufficient if the conduct is “at least in part” due to the complaint or threatened complaint. ⁵

The Connection

To show general reprisal, the complainant must show a link between the retaliatory conduct and the threat of or the filing of the complaint, which is normally proven by inference as direct evidence is invariably non-existent. The second aspect of the test is to show that the offensive conduct is, at least in part, an intentional response to the complaint. ⁶

Threat is Enough

It is not necessary for the complaint actually to be filed. It is sufficient that there was a threat to do so. ⁷ At one time, the sole exception to this principle was the law in B.C., which had mandated that there be an actual complaint filed. Oddly enough, the threat to do so did not then suffice. ⁸ This seemed entirely peculiar. It has since been revised. It now reads as follows:

Protection

43  A person must not evict, discharge, suspend, expel, intimidate, coerce, impose any pecuniary or other penalty on, deny a right or benefit to or otherwise discriminate against a person because that person complains or is named in a complaint, might complain or be named in a complaint, gives evidence, might give evidence or otherwise assists or might assist in a complaint or other proceeding under this Code.

Merits of Underlying Complaint

To succeed on a general reprisal claim, the substantive claim which has been threatened or actually brought, need not succeed. ⁹The applicant cannot threaten or bring a claim which she knows lacks merit. He must, however, have a genuine belief in its merits. ¹⁰

Lost Income

A reprisal claim may also lead to a lost income award, ¹¹again independently of the merits of the underlying substantive complaint.

Compensatory Damages

Sometimes the award made for general damages stands alone. ¹² Often it is included as a factor in the assessment of general damages. ¹³

Just as with the lost income claim where termination resulted from reprised conduct, so can other damages which followed from such offensive conduct, such as a lost salary increment. ¹⁴

The sum of $500 for reprisal plus $5,000 for “special compensation” was awarded due to the description of the complainant, seen however as a resilient person, as a “vile acidic” Jew. ¹⁵ Given the “limited impact”, the retaliatory conduct had on the complainant, in a separate case, the sum of $2,000 was ordered as general damages plus $500 for “special compensation”.¹⁶

An award for reprisal damages of $15,000 was made in the context of a finding of a poisoned work environment, which was linked to the termination decision as a reprisal. In this instance there could have been, but was not, a lost wage claim as the applicant had found alternate employment. ¹⁷

In this case, compensatory awards were made totaling $50,000. No income loss was allowed as the applicant had found other employment. The submission was made that due to the emotional turmoil suffered by him, he was unable to achieve expected sales numbers and an income loss was made on this basis. It was not allowed as the compensatory damages were said to address such a claim.

Sexual Reprisal

The awards made included $15,000 for reprisal and $25,000 due to the poisoned work environment. Awards were also made personally against two employees in the sums of $8,000 and $2,000 each for sexual reprisal, that is, the refusal to accede to sexual solicitations.

As noted above, in Ontario such an offence does not attract employer liability. ¹⁸ A further significant difference between the two offences is that with respect to the general reprisal provision, there is no need to prove the merits of the case which is threatened. A legitimate belief will suffice.

The general trend of “sexual reprisal” is to define such conduct to be within the rubric of sexual harassment. ¹⁹The employer will then defend in the normal course which will include the “due diligence” defence as may be allowed in the relevant jurisdiction. ²⁰.[35]