Discrimination and a decision on remedies

December 20, 2016 Kevin Sambrano, Sambrano Legal Services Employee Relations, HR Policies and Procedures, Human Resources, Human Rights, Notice, Damages and Settlements, Payroll, Union Relations

In an application filed under the Human Rights Code (Code) of Ontario, once the matter has been heard, and the Tribunal has found the respondent to be liable, the next stage is that of remedy. Monetary and non–monetary damages may be awarded as was the case in Kohli v. International Clothiers, where the applicant, Ms. Kohli, had filed an application alleging discrimination in employment on the basis of sex.

Background

An in–person hearing was held on January 4, 2012.[i] The applicant’s testimony was undisputed, as the respondent did not appear at the hearing during the adjudication stage, but later appeared at the remedy stage.

The hearing

The applicant testified that she had been passed over for promotion to Assistant Manager on at least two separate occasions because she was a woman. In point of fact, the applicant testified that the respondent had verbally indicated she was not suitable because she was a woman.[ii] Further, when the applicant complained, she was reprised against. Such reprisals included a reduction in work hours, being scheduled to work on Sundays, and a reduction of responsibilities in the store. The Tribunal found that any investigation into her complaint did not include her being interviewed, as such, was not in fact an investigation.[iii]

Decision on remedies

Section 45.2 (1) of the Code provides as follows:

On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self–respect.

An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self–respect.

An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

The applicant requested compensation in the following areas: monetary compensation, pre and post–judgment interest, and remedies to ensure future compliance. The Tribunal does not award costs, nor does it award damages for future loss of income.

Damages

Among other things, the applicant was awarded $12,000.00 in damages for losses associated with injury to her feeling, dignity and self–respect, lost wages in the amount of $23,586.59, including compensation for wages she would have earned as an Assistant Manager. In addition to mandatory training for the respondent in regard to human rights, the respondent was ordered to retain an expert in human rights law to develop a comprehensive anti–discrimination policy that included an internal complaints mechanism.

The Takeaway

The takeaway for employers is that Tribunal awards can be costly from both a pecuniary, as well as non–pecuniary point of view. Up–to–date policies that address discrimination, and well–established procedures are a necessity as we move into 2017.

[i] Kohli v. International Clothiers 2012 HRTO 153,para. 1

[ii] Ibid., para. 5

[iii] Ibid.,

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Kevin Sambrano, Sambrano Legal Services

Paralegal at Sambrano Legal Services

Kevin Sambrano, B.A.A. is a paralegal who is passionate about law. Kevin has the distinction of being the first paralegal candidate to participate in the Community Legal Aid Services Programme at Osgoode Hall Law School. Sambrano Legal offers legal representation in human rights, landlord and tenant, employment, and Small Claims Court matters within the GTA. Kevin has been a regular contributor to First Reference Talks since 2014 with over 44 published articles relating to human rights and employment law.Read more