Often employers are unaware of the pitfalls of becoming embroiled in a Human Rights application. Employers are sometimes shocked to find that the Tribunal’s powers not only lay in monetary awards, but also in non-monetary, as well as future compliance or public interest remedies. If an employer is found to have breached the Code, below are just some examples of such powers and remedies which the Tribunal may order.
Garrie v. Janus Joan Inc., 2014 HRTO 272 (CanLII). In March of 2014 Terri-Lynn Garrie, an intellectually disabled women who was only paid $1.42 per hour for over ten years, was suddenly terminated. When her parents inquired of her ex-employer as to why, her ex-employer indicated that Ms. Garrie had reported that she was unhappy in the job. Her parents believed this to be untrue. It was eventually discovered that other intellectually disabled employees had also been terminated at about the same time. The parents alleged that the employer had built up their business by underpaying the intellectually disabled, then terminating them. The Tribunal ruled that Ms. Garrie had been discriminated against based on her intellectual disability. Her ex-employer was ordered to pay Ms. Garrie $142,124 in lost wages, $19,613 in lost income for discriminatory termination, as well as an additional monetary award for injury to dignity, feelings and self respect.
Hamilton-Wentworth District School Board, 2013 HRTO 440 (CanLII). When the School Board decided to terminate Sharon Fair, some eleven years later Ms. Fair was reinstated. Ms. Fair was a Supervisor, Regulated Substances, Asbestos, at the School Board when she became ill and went on long-term disability for two years. When she was able to return to work, the School Board refused to allow her back, having taken the position that they could not accommodate her return, due to her work limitations as a result of her health. Ms. Fair was then terminated. Shortly thereafter Ms. Fair filed a complaint with the Human Rights Commission alleging discrimination based on disability. The Tribunal ruled in Ms. Fair’s favour finding that the School Board had discriminated against her by “failing to accommodate the applicant’s disability-related needs and then by terminating her employment.” In addition to a monetary remedy, the School Board was ordered to reinstate Ms. Fair in a suitable position and to provide training.
Public interest remedies
Giguere v. Popeye Restaurant, 2008 HRTO 2 (CanLII). Ms. Donna Giguere began her employment at Popeye Restaurant in Geraldton, Ontario. At the time the owner, Ms. Landry, was aware that Ms. Giguere’s common law spouse was HIV-positive. Some three weeks later Ms. Giguere’s employment was terminated. She subsequently filed an application with the Human Right Commission alleging discrimination on the basis of disability (including perceived disability), association and marital status. Having found that Ms. Landry and Popeye Restaurant breached the Code, the Tribunal stated: “Public interest remedies should be reflective of the facts in the case, should be remedial, not punitive and should focus on ensuring that the key objects of the Code, to eradicate discrimination and to ensure future compliance, are achieved in the particular circumstances… “
The Tribunal ordered the Respondent to make a charitable donation in the amount of $2500.00 to an organization identified by the Commission that provides services to people living with HIV/AIDS in Geraldton, or that undertakes public outreach or education in respect of HIV/AIDS issues, and for the Respondents to provide a copy of Code Cards at the restaurant.
Mandatory training and Human Rights policy
Davis v. Nordock Inc., 2012 HRTO 2218 (CanLII). Jared Davis was a drill press operator with the Respondent, Nordock Inc. (“Nordock”). Mr. Davis filed an application alleging discrimination with respect to employment on the basis of disability. Mr. Davis had broken his ankle, and as a result was unable to work for a number of months, and upon his return requested additional time to attend doctor’s appointments for other health-related issues. Mr. Davis’s employment was eventually terminated. The Tribunal found that Davis was subjected to discrimination contrary to the Code, and found the Respondents to be jointly and severally liable for the violation of the Code. The Respondents were made to pay the Applicant $12,000 for injury to his dignity, feelings and self respect, as well as future interest remedies including (at their own expense):
(i) the development and implementation of a workplace human rights (anti-discrimination and anti-harassment) policy, that includes the duty to accommodate in the workplace, and for them to distribute the policy to all supervisors, management and staff.
(ii) a mandatory human rights training program about human rights for all supervisors, management and staff who perform supervisory and/or human resources functions.
Message to employers
The message to employers is clear, that the powers of the Tribunal are unlike those of a court, in that remedies such as training, reinstatement and policy changes can be ordered in addition to monetary awards. In this way the Human Rights Tribunal can often be a more effective method of creating lasting change as well as a more daunting prospect to employers.