, Author at The Law of Workplace Sexual Harassment in Canada

April 18, 2022

Remedy – Reinstatement

Under human rights legislation, the purpose of compensation is defined by the make whole concept. Ontario Court of Appeal Piazza v Airport Taxicab, (1985), 7 C.H.R.R. D/3196 (Ont. Bd. Inq.), var’d 24 O.A.C. 8 (Div. Ct.), rev’d 60 D.L.R. (4th) 759 (C.A.) (referenced in Ontario Human Rights Commission v Impact Interiors As the remedy under the Code is restitutional in nature, the length of employment and the “quality” of employment are both irrelevant factors in the determination of the income loss. The Court of Appeal reversed the...

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April 18, 2022

Lost Income Claim Human Rights

Lost Income – Special Damages

The determination of a lost income award under human rights law is much different from the claim made as a wrongful dismissal or breach of contract claim. This may lead to a more dramatic claim for lost income, or a much more modest claim, based on the context. Make Whole Under human rights legislation, the purpose of compensation is defined by the make whole concept. ¹ Ontario Court of Appeal Piazza v Airport Taxicab, (1985), 7 C.H.R.R. D/3196 (Ont. Bd. Inq.), var’d 24 O.A.C. 8 (Div. Ct.), rev’d 60...

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April 18, 2022

Human Rights Liability Rules Premium

Liability Factum

Liability A Liberal Interpretation Given the broad policy considerations behind the human rights legislation, the statute should be interpreted in a manner “befitting the special nature of the legislation, which as described in, is “not quite constitutional”. The human rights legislation hence must be given “such fair, large and liberal interpretation as will best ensure the attainment of their objects”. O’Malley v Simpson Sears [1985] 2 SCR 536 B. Burden of Proof 2. The burden of proof rests on the complainant to establish a prima facie case of adverse discrimination. 3. A...

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April 18, 2022

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Sample Factum – General Reprisal

1. The purpose of this remedy is to allow complainants to be able to enforce their rights without the fear of repercussion. 2. A complainant for a reprisal remedy stands alone. Success in the substantive complaint is not required. The applicant must only show that rights were claimed or threatened to be claimed under the Code and he/she was the subject of adverse treatment or the threat of as a result.² B.C. requires the complaint to be filed and that the employer is aware of this. HRTO Lewis...

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August 6, 2018

Employment Contract & Human Rights

Human Rights Remedies & Employment Contracts

Lost Income Claim & Severance Clause An employment agreement which sets out a sum to be paid, or notice provided in the event of a termination, will be of no consequence in a lost income assessment in a human rights context. Given the “but-for“ analysis, the basis of the lost income remedy, such a termination provision in the contract will not be an issue in defining the lost income claim.³ In one case this position not even argued by the employer. Fixed Term Contract Absent...

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March 23, 2021

Mitigation Human Rights Premium

G Mitigation & Human Rights

Common Law Rule & Human Rights As a general rule, it would appear that the complainant remains under an obligation to take reasonable steps to seek out comparable employment, as is the case in common law wrongful dismissal actions. There are some inroads suggested to this principle, as discussed below, which reflect the considerable discretion given to the tribunal and that the human rights process is not required to march lock step with common law principles.⁴The Ontario Court of Appeal in Piazza v Airport Taxi(1989) 69 OR (2d)...

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August 27, 2018

Employment Contract & Human Rights

Notional Termination in Human Rights Remedy

Suppose this fact situation: A long-term employee asserts that they have been terminated due to a clear violation of the Human Rights Code; A human rights complaint is filed. Liability is proven or admitted. There is clear evidence to support the employer’s argument that it had planned to close the business or relevant operating division within 3 months. So what is the claim for lost income under the Code? Not much. It will likely be limited to the 3 month period as the employer will be able to successfully...

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March 23, 2021

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B Compensation for Injured Feelings, Punitive Damages, PJI, Costs & Appeals

Awards for Emotional Harm– Generally – Human Rights Early decisions spoke to the concept that there should be a presumption of making an award of special and general damages⁵. This theme has continued. The violation of a human right should be deserving of an independent damage...

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March 23, 2021

Lost Income Claim Human Rights Premium

C Lost Income

Origins of the Claim A claim for “special damages” or lost income may arise in many ways. It may come from a direct termination due to a code violation, or due to a “poisoned work environment”, or as a lost opportunity claim when initial employment was declined, or as a general reprisal claim. In the latter case there is no necessity to prove that the substantive claim succeed on its merits.⁶ Such was the decision in Morgan v Herman Miller (Debane) in which the reprisal claim resulted in...

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April 7, 2021

Human Rights & Reinstatement Premium

D Reinstatement

Reinstatement and Instatement Reinstatement is obviously a very powerful remedy. Apart from the order itself, the request for the order will more readily support a lost income claim to the date of hearing and also, arguably, may be used to buttress a plea for a prospective income loss beyond the date of hearing when the reinstatement order has been denied. Ontario The analysis which follows will show that reinstatement was considered “the prime remedy” for many years in Ontario. In recent years, the frequency of such orders has, for unknown...

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March 25, 2021

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A Ontario Tribunal Awards

Case Tribunal Year Summary Compensatory Damages & Lost Income and other Awards General Comment The reader should review the narrative section of the text dealing with compensatory damages and "mental anguish" awards prior to the amendments to the Ontario Code effective in June 30, 2008. See Chapter 6.3. Sandford v Koop 2005 Two year period of provocative sexual harassment $25,000. There was also an award of $10,000 for mental anguish as was then allowed by the statute. The complaint against the employer was settled independently. Lost income $18,570, moving expenses $666, medical reports $375 This award was against...

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March 23, 2021

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B Ontario Human Rights Claims by Civil Action

CaseYearSummaryAwardSilvera v OlympiaOSC 2015Sexual assault – touching$30,000 as Human Rights damages. Action was undefended. Additional tort damages were awarded, as set out below.Doyle v ZochemOCA 2017Sexual harassment$25,000 for the Code violation of sexual harassment. The issue on appeal focused on the additional award made of $60,000 for moral damages, which was upheld by the Court of Appeal. The award of human rights damages was seen as one serving a distinct purpose although the “same conduct may ground separate awards”. Human rights awards are designed, the court noted,...

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March 28, 2021

Uncategorized

B Remedies – Statutory and Common Law

The Statutory Process The first remedy is to file a complaint with the relevant human rights body. This relief, of course, is available to any person in Canada. Civil Law Suit – Ontario Only In Ontario, presuming that the individual is governed by provincial and not federal law, there is a second manner of seeking a human rights remedy. Ontario amended its legislation ⁷ on June 30, 2008 to allow civil claims for a breach of a human rights violation when included with...

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March 23, 2021

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C Western Provinces

CaseYear Summary Compensatory Awards, Lost Income and Other SumsMacDonald v. Najafi and another (No. 2)2013The conduct was limited to offensive language, yet insensitive and demeaning and persistent, made to a vulnerable young woman in need of employment, without physical contact.$4,000Soroka v Dave’s Custom Metal2010Verbally offensive conduct, without affirmative evidence, medical or otherwise of the impact upon her, a disparity in age between the victim and the offender, yet causing the termination of the complainant’s employment, in part, due to her refusals.$5,000McIntosh v Metro Aluminum Products2011Conduct was demeaning, provocative...

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March 28, 2021

C DEFINING SEXUAL HARASSMENT

Fundamental Definition The classic test to be met by the successful applicant in a workplace sexual harassment complaint is to show: ⁸ 1. An employment relationship; and 2. Conduct which was unwelcome, when assessed objectively; which 3. Emanated from an employee or agent of the employer; 4. Or from the directing mind of the legal entity which was the employer ⁹; 5. The harassment was connected to the workplace, and 6. The offensive conduct was due to the sex of the victim Wide...

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