Arbitrator Deborah Leighton has made history in her recent decision on remedy in OPSEU (Ranger) v. Ontario (Ministry of Corrections) 2013 CanLii 50479, which was released this past July 2013 by awarding more than $100,000 in damages for breach of the Ontario Human Rights Code and the applicable collective agreement for discrimination, harassment and poisoned work environment.
In the decision on the merits found in OPSEU (Ranger) v. Ontario (Ministry of Corrections) 2010 CanLII 7275 (ON GSB) which took 66 days of hearing and almost 4.5 years to complete the evidence, Arbitrator Leighton ultimately held that the Ottawa Carleton Detention Centre and the Ministry of Corrections had failed to accommodate the Grievor, Mr. Ranger, when he became ill as a result of workplace harassment and discrimination on the basis of his sexual orientation.
The Ministry was ordered to pay all lost wages that amounted to over $240,000.00.
The one key outstanding issue was what, if any, amount of compensation was the Grievor entitled to as a result of the discrimination and failure to accommodate. Arbitrator Leighton described the Ministry’s “…harassment and discrimination that created a poisoned workplace at the Ottawa Carlton Detention Centre was vile”. It was against this backdrop, that Arbitrator Leighton had to assess the quantum of compensation to award.
Arbitrator Leighton held that “compensatory damages are non-taxable payment to an individual. They are designed to put the aggrieved individual in a position they would have been in, had the wrong not been committed.” She then reviewed jurisprudence which held that compensatory damages could be awarded for harm done by the employer to an employee including harm that resulted from discrimination.
Arbitrator Leighton then considered the facts and made the following orders:
- $45,000.00 for breach of the Human Rights Code and collective agreement for discrimination, harassment and poisoned work environment at the Ottawa Carleton Detention Centre;
- $35,000 for breach of the Human Rights Code and collective agreement for failing to properly accommodate the Grievor between 2003 and 2005
- $18,000 for breach of the Human Rights Code and collective agreement for failing to properly accommodate the Grievor between 2008 and 2010.
This decision demonstrates that employers that breach the code are not only on the hook for lost wages, but they can also be on the hook for large and costly non-taxable damages for their conduct.
Simon Heath LL.B, M.I.R.
Heath Law, Employment Lawyers
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