Ontario employers are no stranger to the fact that the Human Rights Tribunal of Ontario and labour arbitrators can award human rights damages. It has, however, been much less common to see an Ontario court award human rights damages. However, legislative developments and recent decisions, including Silvera v. Olympia Jewelry Corporation, 2015 ONSC 3760, confirm the authority and the increasing number of cases in which Ontario courts award human rights damages. This serves as a warning for all employers with employees in Canada to ensure that they have in place appropriate human rights-related policies and practices.
A Defining Moment in 2008
In 2008, a number of significant amendments to the Ontario Human Rights Code came into effect. One of these amendments permitted a court, in a civil (court) proceeding, to award an employee human rights damages, including general damages. However, the court could only do so where the civil proceeding is not based solely on an infringement of the Code. Before these amendments came into effect, Ontario courts did not have the authority to award human rights damages to an employee.
The Increasing Trend of Ontario Courts to Award Human Rights Damages
It took approximately five years before an Ontario Court first exercised this authority. In 2013, the Court in Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799 awarded the plaintiff $20,000 in general damages for an employment-related human rights violation, among other remedies.
Post-Wilson, there have been about a handful of reported decisions where an Ontario court has awarded human rights damages, including Bray v. Canadian College of Massage and Hydrotherapy, 2015 CarswellOnt 1232 (Ont. Sm. Cl. Ct.) and Partridge v. Botony Dental Corporation, 2015 ONSC 343. The number of recent awards demonstrates an increasing trend of such awards and Ontario courts are prepared to award human rights damages in appropriate cases.
The Most Recent Human Rights Damages Award by an Ontario Court
On June 16, 2015, the Ontario Superior Court of Justice released its decision in Silvera. The case represents the most recently reported decision by an Ontario court to award human rights damages to a former employee.
In Silvera, the plaintiff commenced an action for damages arising out of alleged wrongful dismissal by her former employer and a series of sexual assaults and battery, sexual and racial harassment perpetrated by her former direct supervisor while she was employed. The employer and the direct supervisor, the named defendants, did not appear at trial. That being the case, the Court decided that all of the factual allegations set out in the plaintiff’s amended pleadings were to be taken as admitted.
The Court held that during her employment, the plaintiff was subject to inappropriate racial comments, derogatory language, and repeated sexual assaults by her former direct supervisor. The Court also found that the employer purportedly terminated her for prolonged absence from work and a failure to communicate about her absence and pending return to work without basis to do so.
In discussing the human rights component of the plaintiff’s claim, the court found that her rights as set out in the Code had been violated by the direct supervisor. Specifically, her rights “…i) under s. 5(1) to equal treatment with respect to employment without discrimination because of race or sex, ii) under s. 5(2) to freedom from harassment in the workplace by the employer or agent of the employer because of race, and iii) under s. 7(2) to freedom from harassment in the workplace because of sex” were violated.
The Court awarded the plaintiff $30,000 in human rights general damages for these violations. In doing so, the court followed ADGA Consultants Inc. v Lane 2008 CanLii 39605 (Div. Ct.), where the court stated “…there is no ceiling on awards of general damages under the Code…”. The Court also noted that the effects of the direct supervisor’s conduct had a heightened impact on the plaintiff because, among other reasons, there were no sexual harassment policies in place or other mechanisms to address the conduct.
The court also awarded a number of other remedies, including general and aggravated damages, punitive damages, costs of future therapy care, and future lost income. The employer was held vicariously liable for the acts of the direct supervisor because he was the “operating mind” of the corporation and because there was a strong link between his operation of the corporation and his ability to assault the plaintiff. Accordingly, the employer was jointly and severally liable for damages arising from the direct supervisor’s conduct, as well as being liable for wrongful dismissal damages.
Being Proactive in Mitigating Risk
Human rights damages awards are not new to Ontario employers. However, the fact that Ontario courts are increasingly making such awards raises the importance of having appropriate risk mitigation strategies in place. It would not be surprising to see more plaintiffs assert a human rights violation in civil (court) proceedings. Further raising the stakes are the twin considerations that human rights issues add to the complexity of civil proceedings and, unlike the inability of the Human Rights Tribunal of Ontario to award legal costs, an Ontario court can order legal costs against employers in a court proceeding involving human rights allegations.
Employers outside of Ontario are not immune from the risk of human rights damage liability. All Canadian jurisdictions have a human rights tribunal, a court, or other decision-making body that can award human rights damages against an employer.
To be proactive, employers can take a number of steps, including appropriately vetting all candidates for employment, providing appropriate training to all employees, ensuring compliance with all legislation such as the Ontario Occupational Health and Safety Act and, if appropriate, putting in place appropriate policies and procedures such as human rights policies and procedures. And, in the fact of a court (or any other official) hearing, it is often well-advised for employers to have counsel represent their interests at the hearing.