Sample Factum – General Reprisal - The Law of Workplace Sexual Harassment in Canada
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Sample Factum – General Reprisal

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.1The applicant must prove intent that the action or threat was intended as retaliation to the claim to or enforcement of a right under the statute.

3. To constitute reprisal, it is sufficient if the conduct is “at least in part” due to the complaint or threatened complaint.2

4. Proof of such intent may be inferred from circumstantial evidence, but there must be evidence to support the proposition that the decision maker was aware of the steps being taken to enforce Code rights.3 The complainant must show that he or she holds a genuine belief in the merits of the claim which is asserted. 4

5. Compensatory awards follow the same principles as any such award for a human rights violation. If the applicant was terminated, such would follow as a factor.5

6. A reprisal claim may lead to a lost income award. There is no necessity to prove that the substantive claim succeed on its merits. 6 The employer is deemed to be vicariously liable for a reprisal claim.7

7. Given that the reprisal conduct must be intentional to succeed, consideration should be given to a punitive damage request in the jurisdictions are noted above which allow it.


  1. B.C. requires the complaint to be filed and that the employer is aware of this. HRTO Lewis v Lakeridge Health (Bhabha)
  2. HRTO Murchie v JB Mongolian Grill (Hendriks)
  3. HRTO Lewis v Lakeridge Health (Bhabha); HRTO Murchie v JB Mongolian Grill (Hendricks)
  4. HRTO Bertrand v. Primary Response, (Overend)
  5. 15,000 was made by the HRTO in Smith v Menzies Chrysler (Chadha) decision, in favour of a male applicant. His employment was lost due to the reprisal.
  6. Such was the result in the HRTO decision of Morgan v Herman Miller (Debane) in which the reprisal claim resulted in a lost income claim of 14 months and the substantive claim was dismissed.
  7. For Ontario claims only, by 46.3(1) of the Code.

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