“Put your money where your mouth is”, is an old expression suggesting that if something is truly important to you, then you will attach monetary consequences to it. Which is why it is interesting that in Canada, damages that are awarded to employees when employers breach their rights (particularly human rights) have historically been low, particularly when compared with our neighbours to the south.
Human rights damages
When it comes to human rights cases, awards for general damages are often less than $10,000, even though the $10,000 cap on general damages was removed almost a decade ago. When we work with individuals that have had their human rights breached, we warn them at the outset that even if they are successful in their claim, the amount they receive may be relatively nominal and inadequate to compensate them for what they have experienced. Furthermore, since most cases settle before a hearing, we warn them that is likely that they will receive even less unless they are willing to go the distance and take the matter to a hearing. Anecdotally, I have heard stories of Vice-Chairs at mediation telling complainants in discrimination cases that typically, the numbers that they look at when trying to reach settlement at mediation are in the $7-$8,000 range.
When human rights claims are brought in civil court, plaintiffs typically seek several types of damages, including
- Damages for breach of the Human Rights Code
- moral/bad faith damages (The Damages Formerly Known as Wallace)
- Punitive damages
- Aggravated damages, and
- Damages for mental distress.
As many will recall, when the trial judgment came out in Keays v Honda Canada, it included an award of $500,000 for punitive damages. This was groundbreaking; it was extremely rare to see punitive damages awarded in an employment case, and even when they were, they were typically in the $25,000 and less range. There had never been one anywhere near half a million dollars. Of course, over time, this award was watered down, first by the Ontario Court of Appeal, which reduced it to $100,000, and then by the Supreme Court of Canada, which eliminated punitive damages from the award altogether.
Since that time, we have seen the numbers increasing. As I have written on several occasions, we do see more six-figure awards than we used to. The reality, however, is that for most discrimination and harassment cases, the awards are still relatively nominal.
$85,000 in human rights / moral damages
The recent decision in Doyle v. Zochem Inc. is somewhat of a good news/bad news story. The Plaintiff, who brought her claim in civil court (as one can do in Ontario where a human rights claim can be attached to a civil claim), had been subjected to harassment and then dismissed when she complained. As set out in the judgment, the perpetrator:
- would stare at her breasts and purport to take a picture of them;
- told her Philips [an independent contractor who had done work for the appellant and with whom Doyle had had a ‘romantic relationship’] had an “anaconda” in his pants and she should date him;
- said the “girls”, referring to her breasts, looked “good”;
- referred to their private parts as their “little friends”;
- described “bunny ears”, meaning her feet up behind her ears (as a sexual position);
- kept telling her she needed to get “laid”, or needed “a little pounding”, asking if she was “getting any”;
- told her how another employee had “the best body”;
- A particularly gross example of this “locker room talk” related to her request to have him make a forklift attachment. When she later saw him with something with a chain on it, which appeared to be what she had asked him to make, he told her in fact it was just a device that he was going to put her feet in to pull over her head so he could “get at her”. She said she felt like “a piece of meat”.
As the Court of Appeal further summarized:
At trial, she was awarded $60,000.00 in moral damages and $25,000.00 in general damages pursuant to the Human Rights Code. The matter was appealed to the Court of Appeal and, in justifying the award of moral damages, the Court engaged in a detailed analysis of the Defendant’s conduct. I have excerpted some key aspects below:
On the one hand, the decision shows a willingness to award greater amounts than have been awarded in the past, as well as to award both moral and Human Rights damages where appropriate. Conversely, although the Courts clearly felt strongly about the inappropriate conduct of the employer, they still only awarded $85,000.
Increasing awards while addressing frivolous claim
As many have opined before, these awards are simply not enough to compensate victims or deter employers, who often see such awards as, simply, a cost of doing business. The tribunals and courts have not “put their [or the employers’] money where their mouth is”.
At the same time, the Human Rights Tribunal has another problem. Currently, it does not have the authority to award legal costs, even where a claim is entirely frivolous. Furthermore, there is no “gatekeeper” to eliminate unmeritorious claims.The Human Rights Commission used to have the power to dismiss claims that could not succeed, but when the $10,000 cap was removed, so was this mechanism. As a result, all claims proceed to the Tribunal. For that reason, savvy individuals sometimes file complaints knowing that it is quite likely that the employer will be willing to pay some “ransom money” rather than incur the cost of defending itself, even if they are ultimately successful.
If the Tribunal is going to increase the amounts that it is willing to award (as it should), then there should also be a mechanism in place to either screen out frivolous complaints, or at least ensure that people bringing such complaints are responsible for a portion of the responding party’s legal costs. Otherwise, they have nothing to lose, since they can file a Complaint without a lawyer (and therefore without legal costs), while forcing the Respondent to incur substantial costs in defending the matter.
There has been a lot of change in our human rights regime over the last few years, and all of the messaging suggests that discrimination and harassment will not be tolerated. However, we need to put our money where our mouth is, and ensure that the amounts awarded are appropriate to truly deter such conduct, while at the same time putting safeguards in place to prevent abuse of the system.