The Ontario Human Rights Tribunal: Remedies and Increasing Damages

Hello, and welcome to another employment law update brought to you by Rudner Law. My name is Brittany Taylor.

Today we’re going to be discussing a decision from the Ontario Human Rights Tribunal which provides yet another example of how damages for breach of the Ontario Human Rights Code are increasing. This should serve as a warning to employers that breaching the code is getting more and more expensive – hopefully this will lead to fewer and fewer breaches. Passmore and Illumiti Inc., which was released in November of last year, is also helpful for both employers and employees as it reviews the types of remedies that may be available through the tribunal, as well as how damages are assessed.

In this case, the employee was on a medical leave of absence for about two and a half months. When she was ready to return to work, a back-to-work plan was developed by the disability benefits provider. This plan was discussed and agreed upon with the employer, however, when the employee attended work in August of 2014 to begin her return, her employment was instead terminated. In a separate decision, the tribunal found that the dismissal had violated the employee’s rights under the code. This decision however, deals solely with the issue of remedies.

The employee saw damages of $40,000 for injury to dignity, feelings, and self-respect, an additional $40,000 for mental distress damages, and lost wages from the termination date to the start of the tribunal hearing in March of 2017. The tribunal concluded that while it could not make a separate award for mental distress damages, the degree of mental distress that was experienced by the employee, as a result of the employer’s conduct, could impact the amount an applicant might be entitled to be awarded as compensation for the injury to her dignity, feelings, and self-respect. The tribunal found that the manner in which the employer terminated the employee’s employment, on the day in which she was returning to work, expecting to participate, in good faith, in a return-to-work process, that had been agreed upon by all parties, had a serious impact on her dignity, feelings, and self-respect. The tribunal also considered that the employee was in a particularly vulnerable position when the breach of her rights occurred. And finally, it was clear that the dismissal had a lasting impact on the employee’s mental health; impacting her relationships with her family, friends, and her overall health. Based on all of these factors, the tribunal awarded the employee $40,000 for injury to dignity, feelings, and self-respect.

This is a pretty significant number, given that only a few years ago the awards coming out of the tribunal were more in the range of $5,000 to $15,000. We continue to see awards that push well past this threshold, including here in this case.

With respect to damages for lost wages, the employer disagreed that this should be calculated from the date of termination all the way up to the date of the hearing. Rather, the employer argued that it should really only have to pay lost wages up to the date that the employee was precluded from working as a direct result of the termination of her employment. So in that regard, the employer identified 3 possible alternate cutoff dates. The first was the spring of 2015, when the employee began running her own business. The second was June of 2015, when her psychiatrist told her that she needed to return to work. And the third, was September of 2015, when the employee herself admitted that she was no longer precluded from working due to her mental health disability, but as a result of a physical disability. The tribunal awarded lost wages up until June 2015, and in doing so they relied on the notes of the employee’s psychiatrist which indicated that at this time, the employee herself felt that she was ready to return to work. Prior to this, the tribunal was just not satisfied that the employee would have been capable of returning to a job comparable to the one she had previously held with the employer.

In addition to damages for injury to dignity, feelings, and self-respect, and damages for lost wages, the tribunal has the power and the flexibility to award a number of other remedies, this can include requiring an employer to institute policies, or undergo training on human rights and accommodation in the workplace. Although these types of remedies weren’t touched on in this specific decision, they can also have a significant impact on employers.

That’s it for today, thanks very much for watching and again my name is Brittany Taylor. If you have any questions about remedies at the Human Rights Tribunal, or other employment law related inquiries, please don’t hesitate to contact me.

Have a great day.

Brittany Taylor

Since being called to the Ontario Bar in 2013, my practice has been dedicated to assisting both employers and employees to manage their workplaces. My approach to workplace issues is one that is pro-active and preventative. I take great satisfaction in assisting employees and employers to identify and deal with potential issues before they have an opportunity to evolve into serious headaches for both parties. I also take great pride in acting as a vigorous advocate on behalf of my clients, whether at the bargaining table or beyond to the trial stage.