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

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 damages¹.

This theme has continued. The violation of a human right should be deserving of an independent damage claim². The “loss of the right to be free from discrimination and the experience of victimization” is compensable in itself,³ as “the intrinsic value of the infringement or rights under the Code”.⁴

A recent decision of the Federal Court of Appeal spoke to this issue. The decision is significant as it set aside the reasons of the Public Services Labour Relations and Employment Board as unreasonable, which is unusual, given the deference normally given to such a specialized tribunal.

At the initial hearing, the employer, Canada Border Services, agreed that the applicant had been sexually harassed and assaulted by her co-worker. Two grievances had been filed. The Board dismissed one, and on the second, it found that the employer had failed to provide a harassment free workplace but declined to make any damage award. It did so, notwithstanding that it had found that the actions of the co-worker were “reprehensible”, “a vulgar prank” and that the applicant had been demeaned.

Although not directly stated in the Board’s reasons, the Court of Appeal found that the rationale of the Board for refusing compensatory damages was that the conduct of the co-worker was not the sole cause of the applicant’s medical condition. This argument had not been advanced by the employer and it, in fact, had admitted that the applicant had suffered harm from the questioned conduct.

This decision of the Board was found to have been unreasonable and was set aside.

There are three important points which come from this decision of the Court of Appeal.

Firstly, the Board’s finding that the injuries suffered by the victim were not due solely to the conduct of the wrongdoer, and hence not compensable, was an error of law.

Secondly, it found that the purpose of the award of non-pecuniary damages includes a remedy to “vindicate a claimant’s dignity and personal autonomy and to recognize the humiliating and degrading nature of discriminatory practices”. The decision of the Board in denying compensation where such conduct enhances a pre-existing condition or “contributes to harm caused by another source” was hence contrary to the purpose of the remedy and unreasonable.

Thirdly, the Court of Appeal returned to the acceptance of the arbitral jurisprudence that once pain and suffering caused by a discriminatory practice is established, damages should follow. This is an important point and one accepted by all human rights tribunals.

The case was remitted back to a second Board for the damage assessment.

The factors to be reviewed in setting the damage award when the damage was not presumptively set were the “humiliation; hurt feelings: the loss of self-respect; dignity and confidence by the complainant; the experience of victimization; and the seriousness of the offensive treatment”⁵.

The same principle was used by a civil court assessing damages under the Ontario Code by civil action, noting that the sole evidence to support such a claim was the plaintiff’s deposed evidence that she was “shocked, dismayed and angered” by the conduct and also in the words of the trial judge “she referred vaguely to ‘the loss of dignity and loss of feelings of self-worth’”⁶. The damage claim was based on the wording of the Code allowed for “compensation for the loss of the right to be free from discrimination and the experience of victimization”⁷.

The Ontario Court of Appeal agreed with these principles in its 2016 decision, ⁸ in setting aside the trial judge’s award of $20,000 in compensatory damages and increasing this award to $40,000.

Of some note to this issue is the recent Supreme Court of Canada decision which concluded that there was no mandatory requirement to prove a recognized psychiatric injury. The instant case was a claim in negligence for damages for mental suffering due to a car accident. The Supreme Court reversed the Quebec Court of Appeal and concluded professional medical evidence, while useful, was not a mandatory step to prove the damage claim:

To be clear, however: while relevant expert evidence will often be helpful in determining whether the claimant has proven a mental injury, it is not required as a matter of law. Where a psychiatric diagnosis is unavailable, it remains open to a trier of fact to find on other evidence adduced by the claimant that he or she has proven on a balance of probabilities the occurrence of mental injury. And, of course, it also remains open to the defendant, in rebutting a claim, to call expert evidence establishing that the accident cannot have caused any mental injury, or at least any mental injury known to psychiatry. While, for the reasons I have given, the lack of a diagnosis cannot on its own be dispositive, it is something that the trier of fact can choose to weigh against evidence supporting the existence of a mental injury.

The principles to be applied in setting the damage award for injured feelings and loss of dignity and self-respect were seen generally as follows⁹:

1. the objective seriousness of the conduct;
2. and the effect on the particular applicant who experienced discrimination¹⁰:

It was noted that dismissal from employment is generally regarded as more serious than an isolated comment. Similarly, the more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.

Damages will be generally at the higher end of the range when the applicant has experienced significant consequential emotional issues¹¹.

Those issues relevant to this latter issue were expanded as summarized below in the review of sexual harassment damage awards¹².

There are several further principles which have emerged as guide posts for the determination of fair damage awards for emotional harm and injured feelings. The purpose of such an award to restore the victim to her former position and yet to avoid over paying in the process. The award should not be high as to be “windfall compensation”¹³. This being said, the award must be significant enough to avoid “minimizing the impact of the wrongdoing”¹⁴. The award must also be intended to prevent future discrimination and “act both a deterrent and an educational tool”¹⁵¹⁶

None of the above words, however,is particularly helpful in determining the range of expected awards in real dollar terms. The sums awarded are reviewed below to provide some realistic expectations. While it may be true that the principle of stare decisis is not applicable to administrative decisions, in the real world, the awards tend to follow an apparent pattern¹⁷ and indeed such is the synthesis of the cases, although there is a noticeable difference in the expected range from jurisdiction to jurisdiction.

These awards are summarized here.

There is also a significant distinction between the sums typically awarded in common law tort cases and similar awards made in human rights cases.

This very issue was the subject of debate in the initial review¹⁸ of the Alberta tribunal’s decision with respect to an award of $25,000, in that this sum was beyond the then expected range. The court upon a first review of the tribunal decision expressed the view that tort cases “could provide guidance on the quantum of damages” to be awarded in the human rights venue¹⁹. The Court of Appeal declined the invitation to comment upon the use of such tort awards for psychological harm. It did observe that sums awarded²⁰ were “on the low end” of what it would have considered proper in a civil context.

The award is similar to the tort concept but the reality is that the sums awarded have been, for the most part, dramatically lower that the awards made in a civil case. One might ask why should this be so? There is no logical reason for such disparity. There was also a significant difference in the awards of future income loss. At one time, tribunals do not award such amounts are set by the civil courts. This pattern has now changed.

Recent decisions have dramatically altered the range of high side awards. The Ontario tribunal has ordered sums in the range of $150,000 to $200,000 for admittedly unusual fact situations of exceptional abuse, yet the expected lower end range has also increased significantly. One case decided in May of 2020 awarded $50,000 for damages, including reprisal, for conduct which was described as “not egregious”.²¹

A 2021 decision in British Columbia, not in a sexual harassment case, allowed for an award of $176,000 after a 20% discount for compensatory damages for adverse treatment due to race, which was a startling award.

Also a recent decision in Manitoba granted compensation in the sum of $75,000 for adverse treatment due to gender preference. The prior maximum award had been $20,000.

The damage summary above the index reviews tribunal and civil awards.

Ontario’s Human Rights Code prior to June 30, 2008

Ontario’s present Code became law as of June 30, 2008. It is important to understand the issues in the historic interpretation of the prior Code in the use of such precedent damage awards under the former Code in the modern context as it may be confusing to reference certain of such past authorities today.

The former code, unlike the modern version, contained a provision was described an award for “mental anguish” due to wilful or reckless conduct and set a cap for such an award at $10,000. Many early decisions misconstrued this provision as setting a maximum sum for any award of compensatory damages²².

This issue was ultimately resolved as late as February of 2001²³ when it was determined that this statute allowed for awards of general damages without a ceiling in addition to the “mental anguish” $10,000 cap as set out in the statute²⁴.

For these reasons, readers of cases under the former Ontario Code should be alive to the historical issues as noted above. Only cases which clearly embrace the authority of the Board to order general damages over and above the $10,000 mental anguish award should be used in the modern context.

Secondly, to receive an award of “mental anguish”, it must be recalled that the complainant was formerly required to prove conduct which met the test of “wilful or reckless²⁵”. Such awards were made only where “there was a relatively high degree of mental pain and distress²⁶” These awards were made frequently in sexual harassment cases.²⁷

Setting the Award for Compensatory Damages – Sexual Harassment

The general test for the assessment of general damages involves an assessment of the following factors²⁸:

1. the humiliation experienced by the complainant;
2. the hurt feelings experienced by the complainant;
3. a complainant’s loss of self-respect;
4. a complainant’s loss of dignity, self-esteem and confidence;
5. the experience of victimization;
6. the vulnerability of the complainant; and
7. the seriousness, frequency and duration of the offensive treatment.

It has been generally accepted that the awards made in sexual harassment cases should be higher than usual compensatory awards due to the likelihood of more severe personal consequences and the inherent vulnerability of the victim²⁹. The unstated reason may be that the conduct is clearly intentional, for personal gratification, and often in an abusive relationship with an inherent power imbalance. It is unlike the usual human rights violation.

The factors which have been determined to be influential in shaping the sum to be awarded for emotional harm in a sexual harassment case have been stated to be as follows³⁰:

1. the nature of the harassment, that is, was it simply verbal or was it physical as well;

2. the degree of aggressiveness and physical contact in the harassment;

3. the ongoing nature, that is, the time period of the harassment;

4. its frequency;

5. the age of the victim;

6. the vulnerability of the victim; and

7. the psychological impact of the harassment upon the victim.

The amount should not be set so low as to be a “licence fee³¹”.

It has been noted that the manner in which the employer has responded to the claim should be a factor in determining the quantum of the sum to be awarded as compensation.In addition, the existence of a harassment policy and its enforcement³² will also be considered in this context³³.

The financial status of the respondent has no relevance to the award³⁴, that is, the difficulty the respondent may have to pay the award.

There is usually no punitive component to the award³⁵.

The tribunal will consider all relevant factors. The fact that the incident may be an isolated occasion and was pre-meditated and no medical evidence was led, were all be factors in reducing the size of the award³⁶.

Certainly medical evidence will be preferred and will likely allow for a more generous damage assessment, but it is not mandatory to prove the degree of emotional trauma suffered by the applicant³⁷.

This was also the view of the Supreme Court of Canada in the 2017 decision of Saadati v Moorhead in a tort claim asserting damages for a psychiatric illness, in which no medical evidence was called at trial.

In Ontario, until 2015, the damage awards for sexual harassment tended to cluster in the range of $20,000 to $25,000. The broad spectrum was then noted to be from $12,000 to $50,000³⁸, the award being affected by the factors as discussed above and also whether there was a reprisal, which may or may not be considered as an independent award³⁹. The award has also been influenced by whether the victim suffered a loss of employment, notwithstanding that this may lead to a discrete claim.

An award of $12,000⁴⁰ was made due to verbal and modest physical touching⁴¹.

A general damage award of $16,000 due to a single incident and a reprisal. ⁴² was influenced by the flawed investigation and the finding of reprisal for an incident which was serious, but isolated.

The sum of $17,500 was awarded to a probationary sales representative⁴³, certainly in a position of a power imbalance⁴⁴.

The sum of $18,000⁴⁵was awarded to a person employed as a commission sales representative. Her boss had asked her what kind of underwear she wore, told her when she crossed her arms he could not see her chest, referred to her cotton candy soda pop drink as “cotton panties’, offered to take her to a hotel for her birthday, asked her to sit on his lap, said he wanted to jump her, asked her for oral sex, and to sleep with him.

An award of $25,000⁴⁶ was made reflective of a two year pattern of sexual harassment by a manager to a person in a subordinate position, aged 29. It was accepted that the complainant had immediately objected to the behaviour. In the same case an award was made for mental anguish of $10,000; The term “mental anguish” is used with specific reference to the former Ontario Code. [/efn_note]

Similarly such an award of $25,000 ⁴⁷ was made in favour of an 18 year old co-op student who had finished her first year of college. She was terminated as an act of reprisal due to complaints of sexual harassment. ⁴⁸

The same award of $25,000⁴⁹, which was however inclusive of a $10,000 mental anguish sum⁵⁰, to a 24 year old single parent who had been harassed while in the middle of a custody fight⁵¹.

This sum was also awarded against a respondent who also had slapped the complainant’s bottom, put his hands under sweater and touched the lower part of her breasts, pinched her bottom, attended at her apartment and pushed her onto her bed, tried to grab her inner thigh and came to her home without invitation. He also pleaded guilty to a charge of criminal harassment⁵².

This same award was given to a student in a law clerk program, who was sexually harassed by being caressed on her lower back, called “hairy”, asked her if her thong was comfortable and was told that it looked good, was spanked on her buttocks⁵³.

An award of $35,000 was made, in which the respondent made frequent references to the complainant’s past sexual relationships, questioned her about her sexual relationship with her husband, amongst other offensive behaviours⁵⁴. She had been racially and sexually harassed⁵⁵.The prior General Manager testified that she was instructed to find a pretext to terminate the complainant because of her complaints, a course which she refused to follow.

An award of $40,000⁵⁶ was made in a context in which the offensive conduct was found to be “persistent, unrelenting” and one act of sexual aggression which resulted in a criminal charge⁵⁷.

The same award of $40,000⁵⁸ was made in a situation in which the personal respondent told the complainant that he wanted to date her, and asked her out several times, always being declined. Following her pregnancy, during which he paid no attention to the complainant, and after her return to work, he wrote her letters advising that he loved her, and that he wanted to be with her, even though he was married. In the letters he said he wanted to have sex with her. He left her a note stating that if she did not sleep with him, he would force her to do so.

He also began to touch her in a sexual way, touching her legs, breasts and buttocks. He frequently tried to enter the bathroom with her. On one occasion, he pushed the bathroom door open and touched her breasts and tried to insert his fingers into her vagina.

On more than one occasion, he masturbated and called the applicant to come and see him. He called her demeaning names and assigned her work which was belittling, such as washing dishes and peeling vegetables, which was not required of other servers.

She sought medical help and was given anti-depressants. She suffered from migraines, loss of sleep, and lack of energy. The personal respondent was charged with criminal assault.

Updated Decisions

The sum of $45,000⁵⁹ was ordered in favour of a woman who was subjected to a single severe incident of harassment. The male forced the applicant to touch his genitalia and ejaculated on her. He also touched her breast and tried to pull her pants down.

An award of $75,000 was made to a young woman employed as an unpaid student intern.

The complainant, who was but 15 years of age at the time of the offensive conduct, was working in her first employment at a tattoo parlour. The owner and “controlling mind” of the business, even more tragically, was a personal friend of the victim’s parents as was his spouse. This personal respondent had in fact borrowed money from the victim’s parents to open the business.

The parties had agreed that the Tribunal may make reference to the transcript of the criminal proceeding against the personal respondent, to which a guilty plea had been tendered. The judge in the criminal case summarized the most dramatic aspects of the  offensive conduct as follows:

On August 27, 2014, both “G.M. and [personal respondent] were at the tattoo shop. They were alone after other staff members left for the evening. Sexual discussions and activity occurred. “G.M.” produced nude photographs of herself. [Personal respondent] touched her buttocks and minimally, (for two seconds), inserted his finger in her vagina. He showed her his penis and invited her to touch it. She did so to appease him. He touched and put his mouth to her breasts. She said it lasted about five minutes. She testified she resisted the sexual activity telling him that he had a wife who was close to her mother. She also related he offered her money and a free tattoo for sex.

A total award of $50,000⁶⁰ was made to a male applicant which was apportioned as a total of $10,000 against two respondents individually, $25,000⁶¹ against the employer, and $15,000 for reprisal.

The sum of $75,000 was granted in a recent decision due to persistent harassment and one forced kiss. ⁶²

The same award of $75,000 was made in 2019 to a woman who complained of unwanted acts of sexual solicitation. The complainant was a probationary housekeeper who was harassed by the General Manager of the hotel. ⁶³

The then highest award of  $150,000⁶⁴ was made in favour of one complainant and $50,000 to a second in a particularly unattractive fact situation.

Both complainants were migrant workers from Mexico in Canada on temporary work permits and threatened with termination and hence deportation, failing each one’s willingness to comply with the owner’s demand for sexual favours. The tribunal found the conduct to be unprecedented⁶⁵. The second victim, 22 years old, was required to leave Canada and return to Mexico.

In April of 2020, $170,000 was awarded to a complainant who proved conduct of persistent and severe sexual harassment and one act of unwanted sexual intercourse. ⁶⁶

The highest compensatory award to date of $200,000 was made to a woman who had suffered ongoing sexual abuse for 29 years. She  resided in an apartment also owned by a related company. She was the sole supporter of a disabled son.

She was required to submit to various forms of sexual demands, including sexual intercourse, over a period of 18 years. Following her report of this conduct to the police, she faced eviction. The criminal charges were dismissed. The award was made against the owner of the business personally and against the company. ⁶⁷

Western Provinces

B.C.

Until 2001, the highest award for sexual harassment was $10,000⁶⁸. In 2011, the sum of $12,500 was ordered due to harassment⁶⁹ which was found to be demeaning, provocative and aggressive, yet without any physical component.

$15,000 was ordered in a case involving verbal sexual harassment, including requests for sex⁷⁰ and inappropriate touching.

The awards have risen since 2001⁷¹ and generally have generally followed a similar range as in Ontario⁷².

A young Filipino mother who was hired as a housekeeper and required to perform sexual acts “at the whim” of her employer was awarded $50,000.

Until recently, the highest award had been $75,000⁷³, but this was not a sexual harassment case. This decision was set aside upon judicial review but later reinstated by the Court of Appeal. The latter noted that the tribunal should not be bound by what had been considered as a historic “range” of damage awards and that is was not “patently unreasonable” for the tribunal to award a sum in excess of the prior maximum, given proper consideration of the evidence before it.

The January 2021 decision of the B.C.H.R.T. allowed an award of $176,000, after a 20% risk discount, to a complaint based on adverse treatment due to race. The applicant, a corrections officer, had suffered serious mental injuries due to the conduct of the Ministry of Justice. ⁷⁴ This is an unprecedented award.

An award of $25,000⁷⁵ was made when the applicant was sexually assaulted by the owner of the company in a hotel room where the work crew was stationed out of town⁷⁶.

Fact situations like those above cry out for a punitive award.

The low end of the scale is likely in the range of $3,000 to $4,000. In a situation where the 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, with modest psychological impact, the sum of $4,000 was set as proper compensation⁷⁷.

An award of $5,000 was made in a context of verbal 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 refusals⁷⁸.

Alberta

An award of $5,000⁷⁹ was made to the complainant, living at a job site in northwestern Alberta, who had exited the shower and noticed a male camp maintenance worker watching her. A few days later, the same man was standing beside her bed when she awoke.

A similar award of $4,500 was made to a woman who was subjected to abusive behaviour of shoulder rubbing, being blown a kiss and retaliatory conduct of a dismissal letter and false accusations contained within it⁸⁰.

Until the decision of the Alberta tribunal awarding $25,000⁸¹, the rough maximum was $10,000. The Alberta Court of Appeal noted in this case that prior generally damage awards “have been low, arguably nominal”. This was not a case of sexual harassment but it does set the bell weather for the future of such awards.⁸²

Saskatchewan

As difficult as it may be to believe, the legislators of Saskatchewan have placed a limit on the sum which may be awarded for compensatory damages for a sexual harassment case, in fact any human rights violation, as $20,000⁸³. This includes any award for punitive damages. A person subjected to the most brutal forms of sexual abuse in a workplace environment will see such a maximum recovery⁸⁴.

At one time, the legislated cap was $10,000⁸⁵. It is not surprising that the awards are modest. In the era of the $10,000 maximum, a 19 year old complainant, subjected to verbal and physical harassment, suffering from lost sleep, which affected her academic pursuits resulting in the postponement of her exams recovered $6,000⁸⁶.

A 19 year old woman⁸⁷, economically vulnerable, subjected to persistent physical and verbal harassment, suffering from severe injury to self-esteem and hurt feelings was awarded $2,400, “given the aggressive harassment”.

A woman suffering from a “serious physiological impairment” who reported “reported sleep disturbances, shaking, crying and nightmares” was given compensation of $2,500⁸⁸.

A complainant who was the subject of one aggressive act of a physical nature, at age 21 or 22, highly physically and economically vulnerable, and subjected to verbal abuse on the same day, showing impact on her self-esteem, without “significant physiological impact” was awarded $2,000⁸⁹.

Manitoba

An award of $15,000 for general damages and $5,000 for punitive damages⁹⁰ was made in favour of a woman who was subject to physical contact by the owner of the business which caused severe emotional harm, including “anxiety, depression, flashbacks and panic attacks which continued for several years.”

The panel noted the Ontario law which suggested a range of $12,000 to $50,000 and stated that awards in other provinces have been higher than that of Manitoba. Nothing was done to correct that. The facts in this case were said to support an award in the high end of the range⁹¹.

Prior awards reflected the panel`s comments. They had indeed been low. The highest previous award was $7,750⁹² based on abusive comments and conduct towards a young woman by a customer which the company tolerated. The sum of $5,250 had been awarded due to inappropriate sexual jokes and verbal solicitations⁹³.

This pattern has been dramatically revised. A 2016 decision granted $20,000 to each of three complainants due to a series of long and vile sexual harassments. ⁹⁴. More significantly the Manitoba Human Rights Adjudication Panel signaled a new era in 2019 by awarding the sum of $75,000 to a man who complained of adverse treatment due to his gender preference. ⁹⁵ A lower award, the panel reasoned, would amount to a “licence fee to discriminate”. ⁹⁶

Quebec

An award of $5,000 was made to a woman whose 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 years⁹⁷.

A similar award of $7,000⁹⁸ was made to a woman who was the subject of sexually harassing attitudes, behaviours, insults and reprisals over many months.

As noted, one Quebec decision did allow for $5,000 as a punitive damage award due to the company’s adverse treatment of its workers⁹⁹. One would expect a severe sexual harassment claim would give rise to a similar award.

Maritime Provinces

Nova Scotia

The awards in Nova Scotia are low. In a decision of 2007, the range of expected awards was from $1,000 to $5,000¹⁰⁰. Such an award of $3,500 was made for conduct which was both verbal and physical.¹⁰¹ One reason for this may be that medical evidence was not routinely offered, or at least this was suggested by the Nova Scotia Board of Inquiry¹⁰². In the same case the Board ordered $3,000 in general damages and $7,000 for reprisal and a further $3,000 for reprisal against the employer due to the actions of its Board.

New Brunswick

The sum of $15,000¹⁰³, an inordinately high sum in this jurisdiction, to the male complainant who was subjected to severe harassment by a male colleague¹⁰⁴. This is likely to be set as the high end of the expected range.

An award reflective of modest touching and verbal abuse was made of $2,000. The Board noted that the employer had acted promptly to deal with the allegation¹⁰⁵.

Prince Edward Island

An award of $50,000¹⁰⁶ was made by the PEI Human Rights Commission in a complaint which was based on gender discrimination and sexual harassment. The complainant had lost her livelihood as her licence to practice her profession was withheld. The events of adverse treatment took place over an extended time period and her reputation was also damaged by the conduct in question¹⁰⁷. This is certainly an award at the high end of the scale.¹⁰⁸

Northern Territories

Yukon

The Yukon statute does allow for an award of punitive damages. There is no cap to the sum which may be allowed. The same legislation also provides for an award of costs to the successful complainant. No such awards have been made to date.

This is the sole Canadian jurisdiction in which the tribunal has authority to make a damage award in favour of the respondent to compensate for damages to reputation against the complainant, should it be found that the complaint was frivolous or based on false information. No cases to date have granted this remedy, yet it is a statutory term of which every complainant should be aware.

A summary of the cases may be found here. The highest compensatory award to date has been $5,000, which is low compared to other jurisdictions, given a comparison to the facts in issue.

An award of $5,000 was made due to explicit and ongoing sexual harassment¹⁰⁹.

A woman was subjected to “not physically aggressive” conduct over a two week period was found to be at the “most mild end of the spectrum” and awarded $5,000¹¹⁰, this sum being awarded upon court review. The tribunal had found liability and ordered no compensation.

A 2013 decision allowed each of the two complainants, aged 15 and 17, the sum of $5,000 for injured feelings. Each had been subjected to physical and verbal harassment, including grabbing of their respective buttocks.

A 2018 decision awarded $5,000 to a 54 year old man, suffering from a physical disability, who was subject to harassment by a male co-worker who repeatedly pulled his pants down.¹¹¹ It was found that this offensive conduct was sexually related. Punitive damages had been unsuccessfully requested.

The victim had been sexually abused as a child, which was considered a factor in the assessment. However, the fact that he continued working for some months after the events in question and provided five months’ advance notice of his intent to cease his employment were determined to be reasons to consider a lesser award. This seems to be a questionable decision. Why should the victim’s decision to remain employed somehow reduce the compensation for injured feelings?

As noted below, punitive damages were not allowed. The conduct was clearly deliberate, offensive and committed upon a man suffering from a physical limitation. Under what context then should punitive damages be granted?

NWT

It is difficult to read the words of a 2008 decision and believe that the accuracy of the statement that damage awards in human rights cases have been traditionally capped in the range of $2,000 to $3,000¹¹². The tribunal, however, in this case nonetheless proceeded to set the compensatory award for injured feelings at $15,000¹¹³ to a young apprentice mechanic in a vulnerable position, harassed by her supervisors, subjected to a physical assault, crude sexual remarks, pornography and threats of physical harm. Punitive damages were also awarded of $2,500 and $5,000 against the personal respondents.

Canada

There is a legislated cap on the sum to be awarded for compensatory damages of $20,000¹¹⁴.

As noted above, the federal act does have a provision which allows for an additional damage award for what is, in substance, punitive damages. The vocabulary used is “special compensation” for conduct which is wilful or reckless. Sexual harassment is routinely considered as such conduct. There is, however, the same legislated cap on the sum to be awarded of $20,000.

The amendments allowing such two awards came into effect in June of 1998. All awards prior to this date must be read with this qualifier at hand.¹¹⁵.

As recently as 2009, the Canadian Human Rights Tribunal offered the view that awards in the range of $12,000 to $15,000 are reserved for “the most egregious discriminatory acts”¹¹⁶.

Certainly where the questioned conduct is unwelcome or reasonably to be interpreted as such, this special award is appropriate. An award of such special sum of $2,500 was made in addition to compensatory damages of $5,000 in the context of a single issue, albeit with a physical altercation of a “brief duration”.¹¹⁷ Additional damages were also awarded for retaliatory conduct in the sum of $2,000 plus a further $500 as “special compensation”.

Each of three complainants were awarded $10,000 as “special compensation” given the vulgar and offensive remarks and propositions made by the personal respondent¹¹⁸.

A 2004 award allowed the complainant the sum of $2,500 and $2,500 for “special compensation” in a situation in which the respondent was found naked on her bed touching her in sexual manner. This was the quantum of the relief sought by the complainant¹²¹ was made in a context of severe and repeated contact, inside and outside the workplace, causing fear for the complainant’s well-being and unwanted physical contact on one occasion.

Legal Costs

The law is emphatically clear that for an administrative tribunal to award costs, the statute must empower it to do so.^{122 123}

Quebec’s Charter allows for a costs award in favour of the Commission. Newfoundland’s statute gives the tribunal authority to order “costs as appropriate. B.C.’s act provides for a costs award where there has been “improper conduct”.

Yukon’s law allows a costs order to be made as a general remedy provision where the complaint has been upheld. No cases have awarded costs to date.

It also permits a costs award against the applicant where the complaint is found to be frivolous, as does the N.W.T. and Manitoba. Nunavut’s statute provides authority for such an award where the claim has been frivolous or “knowingly false”, or if the investigation has been unduly hampered by the conduct of either party.

Saskatchewan denies either party costs in any case taken to the Queen’s Bench at either level unless the review application is determined to be frivolous.

As noted above, the Yukon is the only jurisdiction which allows the tribunal to make a damage award in favour of the respondent to compensate for damages to reputation against the complainant, should it be found that the complaint was frivolous or based on false information.

Pre-judgment Interest

PJI is generally allowed on compensatory damages.^{124 125} It has occasionally been set to run from the date of the filing of the application¹²⁶. It would appear that the correct approach is to start the interest clock on the date on which the cause of action arose¹²⁷.

It is routinely awarded on lost wage claims from the date on which the payment was due¹²⁸. To simplify the arithmetic, it may be adjusted from the mid-point.¹²⁹

Public Interest Remedies

The purpose of such a remedy is designed to prevent future wrongdoing and educate those persons involved, with the objective of eliminating the offensive behavior. Such an award should be intended to ensure the objectives of the code are met and to ensure future compliance.¹³⁰ The imposition of such a remedy is more likely where the offender has been seen not to take the apparent transgressions seriously¹³¹. Often an order is made requiring the posting of informative information setting out the mandate of human rights legislation or training to be undertaken by the company for its staff and management¹³².

Appeals from Human Rights Tribunals

There are two issues to be considered with respect to any appeal or review of a human rights complaint. In most Canadian jurisdictions, the human rights process commences by the applicant making a complaint with the relevant commission, which then investigates and determines whether the case is one which should be referred to a hearing. Should the complaint then be dismissed, certain statutes then allow the complainant some form of review of this decision.¹³³

Where no such statutory right of review is allowed, given that this is a statutory decision, there will be a right of judicial review in any event.

Where the case has proceeded to hearing, Canada, Ontario, B.C. and Manitoba allow for judicial review applications, which is a difficult task to accomplish when such a review has been made from a specialized tribunal. New Brunswick and P.E.I. allow for no review at all, which will mean a judicial review may be made. Nova Scotia allows for an appeal on only a question of law, Newfoundland on a question of law but also on a question of fact or mixed fact and law with leave. Alberta, Saskatchewan, Nunavut, N.W.T and the Yukon allow for an appeal without limitations. Quebec provides for an appeal to the Court of Appeal with leave of an appellate justice.

 

1. Peter A. Cumming, now Mr. Justice Cumming of the Ontario Superior Court, in Cameron v. Nel-Gor Castle Nursing Home and Nelson (1984), 5 C.H.R.R. D/2170, referencing his prior decision of Rosanna Torres v. Royalty Kitchenware Limited (1982), 3 C.H.R.R. D/858 at D/869)
2. As above; and The Divisional Court in Scott v Foster Wheeler 8 CHRR D/4179
3. Constance Backhouse, sitting as the Board of Inquiry in Naraine; Naraine was upheld by the Divisional Court Leave to appeal to the Court of Appeal was granted on an unrelated ground and the remedy decision was amended on an unrelated ground; The Divisional Court in February of 2001, released its decision in Ontario Human Rights Commission v Shelter Corporation (leave to appeal to the Court of Appeal denied)
4. Divisional Court in ADGA Group Consultants v Lane
5. As above
6. Wilson v Solis Mexican Foods, Grace J. of the Ontario Superior Court
7. Wilson quoting from ADGA above
8. Strudwick v Applied Consumer & Clinical Evaluation
9. HRTO Arunachalam v Best Buy (Wright)
10. Seguin v. Great Blue Heron Charity Casino, 2009HRTO940(CanLII) 2009 HRTO 940 at para. 16
11. Sanford v. Koop, 2005 HRTO 53 (CanLII), at paras. 34-38, as below
12. in Sanford v Koop (Gottheil)
13. The Federal Court of Appeal in Chopra v Canada
14. The Alberta Court of Appeal Walsh v Mobil Oil
15. The Alberta Court of Appeal Walsh v Mobil Oil; Canada (Treasury Board) v Robichaud, 1987CanLII73 (SCC), [1987] 2 SCR 84.
16. The Tribunal had ordered the sums of $10,000 and $25,000 for the breaches of the human rights based on the Alberta statute which has no cap on the sum which may be awarded for compensatory damages. The Tribunal noted that ordinarily the sums awarded do not exceed $10,000 but the facts in question were exceptional and justified a higher award.
17. As noted in MacTavish v PEI “We must be realistic and consider whether any award bears a reasonable relationship to other awards for similar discrimination”; To the same effect the New Brunswick Labour and Employment Board in Steeves v Woody’s Place quoted with approval from the Ontario Board of Inquiry that “At the same time, fairness requires that an award bear a reasonable relationship to awards made by earlier boards of inquiry.” Willis and David Anthony Phillips Properties (1987), 8 C.H.R.R. D/3847)
18. The decision of the chambers judge, Madam Justice Romaine in Walsh v Mobil
19. Much to the same effect in noting the parallel to tort awards is the decision of the Ontario Board of Inquiry in the 2001 case of Fuller v Daoud (DeGuire)
20. There were two awards of $10,000 and $25,000. This was not a sexual harassment case.
21. Escobar v WCL Capital. The case was not defended, yet it remains reflective of the new view to such damage claims
22. Kearsley v St.Catharines by the Board of Inquiry, chaired by a former Supreme Court of Ontario Justice, Mr. Dennis O’Leary. Back
23. the Divisional Court in Ontario Human Rights Commission v Shelter Corporation
24. This issue was still being debated as late as 2008, in ADGA and Lane
25. Professor Cumming, then sitting as an ad hoc Board, defined “recklessly” as conduct, which is “such as to evince disregard of or indifference to its consequences, that is, the conduct is done with rashness or heedlessness; it is done wantonly”, without regard for the possible injurious impact on the complainant: Cameron v. NelGor Castle Nursing Home (1984), 5 C.H.R.R. D/2170, at D/2198
26. Board of Inquiry in Ketola v Value Propane (Garfield)
27. These awards were essentially punitive in nature, as per the Divisional Court in ADGA and Lane.This is so also for awards of “special damages” under the Canadian Human Rights Act. It underscores the need for punitive damages for sexual harassment cases.
28. Sanford v. Koop, ADGA Group Consultants Inc. v. Lane, at para. 152
29. Hill-Leclair v. Booth, G.G.v1489024andElias (Whist)
30. Torres v Royalty Kitchenware Ltd., (1982), 3 C.H.R.R. D/858 (Ont. Bd. Inq.) (Cummings), now Mr. Justice Cummings of the Ontario Superior Court. This decision has been universally accepted as the criteria for this award, although the sums awarded have increased. See Behm v. 6-4-1 Holdings and others, ; Soroka v. Dave’s Custom Metal Works Ltd., Young v. Petres
31. Sanford, at para. 34; also ADGA Group Consultants Inc. v. Lane, at para. 152; Payotte v Alarm Guard Services (Dimovski)
32. This is the Wall test referenced previously. This is so for all human rights awards, not just sexual harassment
33. Payette v Alarm Guard Security Services; Murchie v. JB’s Mongolian Grill,
34. Hughes
35. The exceptions have been noted. In most cases, there should be a punitive aspect
36. G.G. v 1489024 and Elias, (Whist) An award was made of $18,000 for injury to feelings, dignity and self-respect in addition to an award of $11,940 for lost wages. This effectively covered the applicant’s period of unemployment from June 11 2009 to November 27, 2009
37. Cugliari v Clubine (Faughnan);Fuller v. Daoud (2001), 40 C.H.R.R. D/ 306 (Ont. Bd. Inq.). See the damage assessment narrative below. 
38. Sands v Moneto Marketing HRTO; Smith v The Rovers Rest ; Vipond v. Ben Wicks Pub and Bistro. This should by no means be interpreted as a cap.
39. Garofalo v Cavalier Hair Stylists, a January 2013 decision of the Tribunal (Bhattacharjee)
40. Metcalfe v PapaJoe’s Pizza The sum of $8,000 was also awarded for mental anguish which was later reduced to $1,000 by the Divisional Court without reasons.
41. Comments were made such as “you are a good looking person”, “nice legs”, “nice body”, which occurred every day or every other day. The comments became more rude, more abrupt, more often and more specific, such as “nice boobs” and that she should go into the back so he could suck on them. Other comments continued such as,“can I see your body?”, “can I touch your body?”, “can I kiss you?”, “How old was the oldest man that you have slept with”, “I’ll give you $100 to sleep with my son”. In July, 2001, Toufighjou asked her to take off all her clothes so that he could tell if her body was any good so that she could be a stripper. When she was driving Toufighjou home he started rubbing her arms telling her that her skin was soft asking for a goodbye kiss. When she arrived the next day, Toufighjou said, “where is my kiss?” On one occasion when she was cleaning the fire hoods and her shirt was untucked from her pants, she noticed that Toufighjou was looking up her shirt. She immediately got off the chair and said “why are you doing this?”
42. Murchie v JB’s Mongolian Grill (Hendriks) The respondent was found to have “flicked” the complainant’s nipple.
43. It was found that Mr. Clubine met Ms. Cugliara at Centro’s restaurant. He talked to her at her table and asked her to join him at the bar, an invitation which she accepted. He then engaged her in discussions which included sexual banter and a sexual solicitation. Ms. Cugliara vomited in the washroom. They left the restaurant together and arrived at the parking lot where Mr. Clubine kissed her and touched her in sexual manner. The complainant testified that she pretended to enjoy this conduct. The Complainant’s evidence was that she pretended to enjoy the sexual touching, hoping that it would shortly end. Ultimately, she advised Mr. Clubine that she was ill and he desisted.I find that what is singularly lacking in the events as they transpired is any effort by Mr. Clubine to take appropriate steps to determine himself whether the statements he was making or the actions he took were unwelcome. The Complainant had previously tried to divert sexual conversations and rejected his sexual solicitations, but he persisted in engaging in a course of vexatious comment and conduct, related to the Complainant’s sex
44. Cugliara v Clubine (Faughan)
45. Payotte v Alarm Guard Services. A further $5,000 was awarded for failure to investigate.
46. Sandford v Koop (Gottheil) This was then considered a high side award. 
47. Also an award was made of $5,000 for mental anguish in Arias
48. Arias v Desai
49. Desousa v Gauthier (DeGuire)
50. There was also a general reprisal finding
51. Examples of behaviour of the offensive conduct were the pinning of Sunshine girl images throughout the office, placing sexually explicit paraphernalia on her desk, the personal respondent pulling down the complainant’s underwear, speaking words to the complainant and about her, such as “a nice pair of tits”, “ I would like to wrap my legs around her”, “ I will keep you warm at night because you have no man at home”, squeezed her buttock, rubbed her shoulder, traced with his hand over a run in her nylon.
52. Hughes v 1308581 and Hussein (Martin)
53. Ratneiya v Daniel & Krumeh
54. Baylis-Flannery v DeWilde (Hendriks)
55. Again in the above, there was an award made for $10,000 for mental anguish
56. SH v MPainting (Reaume)
57. In this case, the complainant endured a persistent, unrelenting pattern of inappropriate comments and conduct, including sexual touching and one act of serious sexual aggression. The respondent pled guilty to criminal harassment and admitted in the course of the guilty plea that he engaged in inappropriate comments and touching on a daily basis. The complainant testified that she was humiliated, experienced significant stress, anxiety and depression, sought counselling to deal with the effects of the harassment, developed feelings of isolation and fear and an overall lack of self- confidence. The complainant also testified about how acutely vulnerable she felt as an aboriginal, single-mother with respect to both the experience of being harassed, and the limited choices she felt were available to her to combat the respondent’s behaviour.
58. M.K. v 1217993 Ontario Inc., operating as Wimpy’s Diner.It may be noted that no one appeared for the respondents in the liability or remedy hearing. A reconsideration motion with counsel was not successful
59. C.K. v H.S.
60. Smith v Menzies Chrysler (Chadha)
61. This was due a poisoned work environment in Smith v Menzies Chrysler
62. McWilliam v Toronto Police Services Board
63. A.M. v Kellock. The case was undefended.
64. Tribunal (Hart) in O.P.T.and M.P.T v Presteve Foods Ltd.and Pratas
65. In this case, I have found that when alone in the house in Leamington with O.P.T., the personal respondent abused his position of power and authority over her to require her to perform fellatio on him on three occasions and to penetrate her with his penis on another three occasions. O.P.T. felt compelled to comply with the personal respondent’s demands on the basis of his threats to send her back to Mexico, when she needed her job in Canada in order to help support her two children.
66. N.K. v Botiuk The case was undefended.
67. Judicial review application was dismissed by Divisional Court
68. in Gill v. Grammy’s Place Restaurant & Bakery Ltd., 2001 BCHRT 33
69. The British Columbia Human Rights Tribunal decision of McIntosh v Metro Aluminum Products
70. Harrison v Nixon Safety Consulting 
71. A defining moment was the award of $25,000 made in Datt v. MacDonald’s Restaurant (No. 3) 2007 BCHRT 324 due to adverse treatment due to a disability
72. Harrison v. Nixon Safety Consulting and others (No. 3), 2008 BCHRT 462 (CanLII), the Tribunal awarded $15,000 for sexual harassment. In another harassment case, the Tribunal awarded $25,000;Ratzlaff v. Marpaul Construction Ltd. ,2010 BCHRT 13 (CanLII). In Senyk v. WFG Agency Network (No. 2), 2008 BCHRT 376 (CanLII), the Tribunal awarded $35,000 for injury to dignity, feelings and self-respect for the termination of employment
73. Kelly v. University of British Columbia,2013 BCHRT 302 (CanLII). This award was based on a mental disability. The award was set aside on a judicial review application as “patently unreasonable” on first review, yet later restored by the Court of Appeal.An award of $35,000, then the highest award, in Senyk v WFG Agency Network(#2) in 2008. This was a case based on discrimination due to a physical and mental disability with respect to an employee of a long term history.
74. Francis v B.C. Ministry of Justice
75. Ratzlaff v Marpaul Construction
76. The facts disclosed a serious sexual assault. Ms. Ratzlaff opened the door to her motel room. Mr. Rondeau forced his way into the room. He grabbed her throat and kissed her aggressively, forcing his tongue into her mouth. She said that he then grabbed her breasts and tried to get his hands into her vagina. She kneed him in the thigh but he repeated his conduct.
77. Mac Donald v. Najafi and another (No. 2)
78. Soroka v Dave’s Custom Metal
79. Noel v 375850 Alberta Ltd.
80. Hamm v WWDI Wireless
81. As upheld by the Alberta Court of Appeal Walsh v Mobil Oil. There were actually two awards of $10,000 and $25,000.
82. The sum of $125,000 was awarded in the City of Calgary case but this was a unique case in which the arbitrator was empowered by mutual agreement to consider all remedies, including arbitral, human rights and tort. It is also illustrative of the difference between human rights and common law tort remedies.
83. S. 34(1) Saskatchewan Human Rights Act
84. As noted below, Canada has a similar provision, supplemented by a further allowance of up to $20,000 for “special” damages.
85. It was increased to $10,000 in November of 2001. Prior to this date, it was $5,000.
86. Abu-Ghazaleh v JKT, Saskatchewan Human Rights Tribunal
87. Saskatchewan Board of Inquiry, Ratzlaff v. Dimas (1986), 7 C.H.R.R. D/3402
88. Karlenzig v. Chris’ Holdings Ltd. (1991), 15 C.H.R.R. D/5. The legislated cap was then $5,000.
89. Shier v Edworthy Saskatchewan HRT. The statutory cap was then $10,000
90. The Manitoba Code allows for punitive damages of up to $5,000 against an individual and up to $25,000 against a corporation. This order was made against the owner personally
91. Emslie v Doholoco
92. Garland v. Tackaberry (c.o.b. Grape & Grain), [2013] MHRBAD 5.
93. Metaser v Jewish Community Campus of Winnipeg Inc.
94. Jedrzejewska v A+ Financial Services
95. T.M. v Manitoba
96. This has not been universally accepted in Manitoba. A contrary view as to the quantum of such damages was expressed in Pruden v Manitoba.
97. Commission des droits de la personne et des droits de la jeunesse v Caisse populaire Desjardins d’Amquix
98. Commission des droits de la personne et des droits de la jeunesse v Québec (Attorney General)
99. Québec (Commission des droits de la personne et des droits de la jeunesse) v. Centre maraîcher Eugène Guinois JR inc. This was a complaint based on race. Each complainant was awarded $5,000 in punitive damages.
100. Bennett v Hau’s Family Restaurant
101. Slaunwhite v Bay Landing Dining Room
102. Davison v N.S. Construction Safety, upheld in the N.S. Court of Appeal although the CA specifically distanced itself from the comments on the need for medical evidence. It also set aside the punitive award of $7,000 for reprisal.
103. SWE v BK
104. The conduct was nothing but exceptional. The most serious offence was that the complainant woke up to discover the respondent committing fellatio upon him.
105. Steeves v Woody’s Place
106. Reverend Gael Matheson v Presbytery of Prince Edward Island 
107. The complainant was a 33 year old minister who was stalked by a member of the congregation. It had a devastating impact upon her life. The Presbytery did nothing to cause this conduct to cease.
108. It should also be noted a past income loss of $425,000 plus a pension sum was also awarded
109. Lacosse and Dyck v. Childhood Discoveries Preschool, Board File No. 2012-03
110. Hureau v Yukon Human Rights Board of Adjudication
111. Budge v Talbot Arm Motel
112. Savage v 984239 NWT Ltd. NWT Human Rights Adjudication Panel
113. Savage as above
114. S. 53(2)5 Canadian Human Rights Act
115. ²⁸³Prior to June 30, 1998, the total sum allowed to be ordered of compensatory and “special” compensation was $5,000. Conduct which transpired before this date was subject to this cap
116. Berberi v Canada. Further issues arose which are not relevant to this issue, as noted in a subsequent hearing before the tribunal and the Federal Court, Trial Division
117. Cassidy v Canada Post 2012 Canadian HR
118. Woiden v Lynn One of the complaints was based on family status.
121. Goodwin v Birkett /efn_note]. Awards of $16,000 and an additional sum of $18,000 as “special compensation”¹¹⁹Naistus v.  Chief [/efn_note] was ordered in a situation where the personal respondent was sexually obsessed with the complainant over a two year period, was humiliated resulting in anxiety and depression causing the need for an emotional distress leave. This conduct caused the victim to leave the town in which she lived and start a new life elsewhere.

     An award of $12,000 of compensatory and $15,000 of “special compensation”¹²⁰ Bushey v Sharma This award was made against the personal respondent and was found to be solely attributable to his offensive actions as a separate sum had been paid by the employer

122. The Supreme Court of Canada in its 2011 decision in Canada (Canadian Human Rights Commission) v Canada (Attorney General), generally referenced as “Mowat”
123. There was one decision before Mowat in Curling v.Torimiro (Laird) but it is foreclosed by Mowat. It involved serious allegations of employer wrong doing.
124. The Ontario Court of Appeal in Impact Interiors (1998) 35 CHRR D/477 set aside the Divisional Court decision denying PJI and restored the award of the Board of Inquiry allowing for same.
125. There are contrary decisions which are not well reasoned as in Pilon v The City of Cornwall (Muir); Piechocinski v Toronto Standard Condominium Corporation (Muir)
126. Xu v Quality Meat Packers 
127. MacKinnon v Cel tech Plastics as is consistent with s. 128 of the Courts of Justice Act in Ontario.
128. Henry v Consumer Contact (Bickley);Pchelkina v. Tomsons, 2007 HRTO 42 (CanLII), 2007 HRTO 42 at para. 31.
129. Kohli v International Clothiers
130. Giguere v Popeye Restaurant (Gottheil)
131. Pchelkina v Thomsons (Wright); Morrison v. Motsewetsho (No. 2), 2003 HRTO 21 (CanLII), 2003 HRTO 21 at para. 224.
132. Frolov
133. Newfoundland allows a judicial review application, Alberta provides for an appeal to the Chief of Commissioners and Tribunals and a further judicial review of that decision to a judge, NWT allows an appeal to the Adjudicative Panel, The Yukon provides for an appeal to a Supreme Court justice.