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April 18, 2022

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.¹ B.C. requires the complaint to be filed and that the employer is aware of this. HRTO Lewis...

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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.²The Ontario Court of Appeal in Piazza v Airport Taxi(1989) 69 OR (2d)...

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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 damages³. 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.⁴ 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 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 23, 2021

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D Quebec

Tribunal Awards Quebec CaseYear Summary Award Commission des droits de la personne et des droits de la jeunesse v Caisse populaire Desjardins d'Amqui2003Applicant's manager confided to her repeatedly about his personal life, encouraged her to leave her spouse, made unwelcome comments of her physical appearance and tried to create situations where physical contact with her would be possible all over a period of years.$5,000Commission des droits de la personne et des droits de la jeunesse v Quebec (Attorney General)1998Employee was the subject of sexually harassing attitudes, behaviours, insults and reprisals over...

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March 23, 2021

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F Disability Insurance & Human Rights

Common Law Double Recovery A brief summary of the apparent present status of the common law is that a plaintiff is allowed to sue for lost income in a wrongful dismissal claim and maintain long term disability benefits without offset where the plaintiff has contributed directly or indirectly to the full cost of the premiums for such insurance.⁵In the Ontario Court of Appeal decision in McNamara v Alexander Centre Industries, at trial and on appeal. This may not be the last word as the insurer may have a...

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March 23, 2021

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E Maritime Provinces

New Brunswick CaseYear Summary Award Steeves v Woody's Place2007Verbal abuse and some touching$2,000SWE v BK2007Male complainant who was subjected to severe harassment by a male colleague. He woke up to discover the respondent committing fellatio upon him.$15,000 Nova Scotia CaseYear Summary Award Bennett v Hau’s Family Restaurant2007 Range said to be between $1,000 to $5,000.Slaunwhite v Bay Landing Dining Room2005Harassing conduct was verbal and physical.$3,500Davison v N.S. Construction Safety, upheld in the N.S. Court of Appeal2006 One reason for the apparently low range of the awards is that medical evidence was not routinely offered, or at least this...

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March 23, 2021

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F Canada

Tribunal Awards Canada CaseYear Summary Award General Considerations There is a legislated cap on the sum to be awarded for compensatory damages of $20,000. The Act also allows for a further order up to $20,000 as “special damages” where the conduct is “wilful and reckless”, which sexual harassment conduct is routinely considered to be. The amendments allowing these two forms of awards came into effect in June of 1998. All awards prior to this date should be read with this qualifier in mind.Berberi v Canada. Further issues arose which are not relevant...

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March 23, 2021

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G Yukon & NWT

Tribunal Awards – Yukon- NWT Note: Yukon legislation allows for an award of punitive damages without a stated cap. Costs are also allowed to be made to the successful complainant. No such sums have been awarded to date. The NWT statute provides the Tribunal authority to order punitive damages up to a maximum of $10,000. Both jurisdictions allow for a costs order against the complainant where the claim has been found to be frivolous. No such orders have been made to date. Case Year Summary Award Baczkowski v Suffesick, Brown & Sign Post Corner Inc. 2000 Female...

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March 23, 2021

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H Vicarious Liability – Civil

CaseYear Summary Decision K.T. v Denis Vranich, Elixir and Paradise Lane Developments Hamilton Inc.OSC 2011Case by waitress sexually assaulted against employee of bar and finding of vicarious liability. The employee was also seen as “operating mind” which is usually seen as a ground of liability independently of the VL test.Judgment jointly and severally. The case was undefended.Hudson v Youth Continuum, Phillip Brindle and The Brindle Agency IncOSC 2012 The judgment was against the personal and corporate defendants jointly and severally. There is no analysis of vicarious liability, however. The case was...

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