The double “financial” jeopardy of HRTO damages against the employer

May 22, 2018 Kevin Sambrano, Sambrano Legal Services Employee Relations, HR Policies and Procedures, Human Resources, Human Rights

HRTO damages relating to injury to dignity, feelings and self-respect are one of two types of damages that can be awarded in a case where an employer is found to have breached the Ontario Human Rights Code.

While many businesses may be familiar with the potential exposure in a lawsuit following the termination of an employee, often employers who are found to have breached the Code face a kind of double “financial” jeopardy, arguably different from damages awarded in the Small Claims Court or Superior Courts.

For example, an employee that may be successful in a wrongful dismissal claim may be awarded damages for lost earnings, generally speaking, unless the conduct of the employer was particularly egregious, other heads of damages such as punitive and aggravated damages rarely play a role. Not so at the Human Rights Tribunal of Ontario (HRTO).

If a decision is found in favour of the applicant, he or she may also be awarded damages based on their rights having been violated under the Code. At the HRTO, this is generally referred to as damages relating to injury to your dignity, feelings, and self-respect. In other words, the decision itself can trigger additional damages beyond that of lost wages, specific performance, and expenses for which the applicant can be compensated.

Section 45.2 of the Ontario Human Rights Code reads:

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.

These damages vary in amount. What appears to be the highest award ever issued at the HRTO is most the recent case of A.B. v. Joe Singer Shoes Limited where the applicant was awarded $200,000.00 for her injury to her dignity, feelings, and self-respect. Of note is the damages awarded did not include lost wages. [i]

Further, at times named defendants may be held jointly and severally liable, meaning that the order may be enforced on a person as well as the business entity. As such, the “close down the business and re-open under another name” may not preclude the applicant from enforcing a judgment.

The leading case in addressing these sorts of damages is Sanford v. Koop, a case originating from the Ontario Human Rights Commission which provides a summary for the awarding of such damages.[ii] These factors include:

Humiliation experienced by the complainant
Hurt feelings experienced by the complainant
A complainant’s loss of self-respect
A complainant’s loss of dignity
A complainant’s loss of self-esteem
A complainant’s loss of confidence
The experience of victimization
Vulnerability of the complainant
The seriousness, frequency and duration of the offensive treatment

The takeaway is that an employer named in a Human Rights Tribunal of Ontario Application, if decided against, may be responsible for both wage loss and most likely general damages.

How to avoid such issues? I routinely advise that businesses, regardless of size, keep in touch with a paralegal or a lawyer trained in this area to stay up-to-date of any changes in legislation or Tribunal jurisprudence. Having a robust human rights policy in place so that everyone, employee and employer, is aware of their rights, obligations and protections under the Code also helps to safeguard everyone’s interests. Contemplate a human rights training seminar at least annually with all staff in attendance. Although these suggestions may seem time-consuming or perhaps costly, but bear in mind the adage, prevention is better than cure—which may be even more costly.

Further readings dealing with HRTO damages:

HRTO confirms co-op student’s right to pursue interests
Human Rights Tribunal of Ontario: the “Code” matters, not social norms
The “G” word: Brooks v. Total Credit Recovery Limited

[i] A.B. v. Joe Singer Shoes Limited, paragraph 162

[ii] Sanford v Koop, paragraph 35

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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