OPTION A – The REMEDIES PROVIDED BY STATUTE
There are four essential forms of direct relief available to the complainant, which may be awarded167, which are common to all Canadian jurisdictions. Certain jurisdictions also allow for punitive damages and costs.
The first is the award of compensatory damages for “injury to dignity, feelings and self-respect”168 which may flow from the breach of a substantive statutory right. This may also arise due to the existence of a “poisoned work environment” and/or perhaps a failure to investigate a complaint169, and/or further due to a general reprisal claim. These latter two remedies may be made successfully even where the substantive claim may not enjoy success.
The second is a claim for lost income where there has been such a loss suffered due to the offensive conduct, such as a direct termination which has been influenced by a protected human rights value or due to a poisoned work environment170. This may also follow where a person has been terminated due to retaliatory conduct in a general reprisal claim.
The third remedy is reinstatement.
The fourth form of order is non-monetary relief which may be made against the employer which is designed to remedy the wrong-doing on a principled basis, which is described as public interest remedy171. Also a common statutory remedy is to allow the tribunal the right to order that the offensive behaviour cease.
A finding of an Ontario Human Rights Code violation in employment will give rise to other consequences if the employer is engaged in business dealings with the Ontario government. Such a finding will allow the government to assert any such contract is in breach172.
Certain Canadian jurisdictions do allow for an award of punitive damages.
The Charter in Quebec allows for an award of punitive damages where the conduct is reckless, that is, a standard less than intentional. In one case the sum of $5,000 was ordered to each of four complaints in a case based on race.173
Manitoba allows for punitive damages where the questioned conduct shows malice or recklessness up to $5,000 and $25,000 against an individual or corporation respectively.
The Yukon also provides the same remedy of a punitive award without a stated cap where the questioned conduct was found to be malicious.
N.W.T. allows for punitive damages up to a cap of $10,000174. Nunavut has no set maximum but its statute allows for such incremental damages where the conduct again shows malice or reckless behaviour.
Saskatchewan allows for an incremental award where the behaviour fits the pattern of a conduct meriting a punitive award by behaving “wilfully and recklessly” yet places a cap on the total award of compensatory and punitive damages at $20,000175.
The Canadian Human Rights Act does not use the precise vocabulary of “punitive damages” but the Act allows for an increased damage award of “special compensation” up to a further sum of $20,000 when the conduct in question is wilful and malicious.
One would expect that awards of punitive damages would be more frequent in sexual harassment cases where the conduct is clearly intentional, abusive, for personal gratification and to the obvious personal detriment of the victim and often a misuse of economic power over a vulnerable person176. The general view of the remaining jurisdictions is that there should be no punitive element in awards in human rights cases. It is entirely questionable as why this should be, particularly so given the unique category in which sexual harassment cases fall.
Legal costs are generally not awarded to the successful complainant nor against the unsuccessful one. It is to be recalled that most jurisdictions are not “user initiated” and generally the complaint is brought by the relevant human rights commission.
Quebec’s Charter does allow for a costs award in favour of the Commission. Newfoundland’s statute allows for “costs as appropriate”. Yukon also allows for a costs award. Nunavut’s statute provides authority for such an award where the claim has been “knowingly false”, or if the investigation has been unduly hampered by the conduct of either party. This presumably does not require a liability finding on the substantive complaint. B.C.’s act provides for a costs award where there has been “improper conduct”.
Awards for Emotional Harm– Generally – Human Rights
Early decisions spoke to the concept that there should be a presumption of making an award of special and general damages177. This theme has continued. The violation of a human right should be deserving of an independent damage claim.178 The “loss of the right to be free from discrimination and the experience of victimization” is compensable in itself,179 as “the intrinsic value of the infringement or rights under the Code”.180
A recent decision of the Federal Court of Appeal spoke to this issue. The decision is significant as it set aside the reasons of the Public Services Labour Relations and Employment Board as unreasonable, which is unusual, given the deference normally given to such a specialized tribunal.
At the initial hearing, the employer, Canada Border Services, agreed that the applicant had been sexually harassed and assaulted by her co-worker. Two grievances had been filed. The Board dismissed one, and on the second, it found that the employer had failed to provide a harassment free workplace but declined to make any damage award. It did so, notwithstanding that it had found that the actions of the co-worker were “reprehensible”, “a vulgar prank” and that the applicant had been demeaned.
Although not directly stated in the Board’s reasons, the Court of Appeal found that the rationale of the Board for refusing compensatory damages was that the conduct of the co-worker was not the sole cause of the applicant’s medical condition. This argument had not been advanced by the employer and it, in fact, had admitted that the applicant had suffered harm from the questioned conduct.
This decision of the Board was found to have been unreasonable and was set aside.
There are three important points which come from this decision of the Court of Appeal.
Firstly, the Board’s finding that the injuries suffered by the victim were not due solely to the conduct of the wrongdoer, and hence not compensable, was an error of law.
Secondly, it found that the purpose of the award of non-pecuniary damages includes a remedy to “vindicate a claimant’s dignity and personal autonomy and to recognize the humiliating and degrading nature of discriminatory practices”. The decision of the Board in denying compensation where such conduct enhances a pre-existing condition or “contributes to harm caused by another source” was hence contrary to the purpose of the remedy and unreasonable.
Thirdly, the Court of Appeal returned to the acceptance of the arbitral jurisprudence that once pain and suffering caused by a discriminatory practice is established, damages should follow. This is an important point and one accepted by all human rights tribunals.
The case was remitted back to a second Board for the damage assessment.
The factors to be reviewed in setting the damage award when the damage was not presumptively set were the “humiliation; hurt feelings: the loss of self-respect; dignity and confidence by the complainant; the experience of victimization; and the seriousness of the offensive treatment”.181
The same principle was used by a civil court assessing damages under the Ontario Code by civil action, noting that the sole evidence to support such a claim was the plaintiff’s deposed evidence that she was “shocked, dismayed and angered” by the conduct and also in the words of the trial judge “she referred vaguely to ‘the loss of dignity and loss of feelings of self-worth’”.182 The damage claim was based on the wording of the Code allowed for “compensation for the loss of the right to be free from discrimination and the experience of victimization”.183
Of some note to this issue is the recent Supreme Court of Canada decision which concluded that there was no mandatory requirement to prove a recognized psychiatric injury. The instant case was a claim in negligence for damages for mental suffering due to a car accident. The Supreme Court reversed the Quebec Court of Appeal and concluded professional medical evidence, while useful, was not a mandatory step to prove the damage claim:
To be clear, however: while relevant expert evidence will often be helpful in determining whether the claimant has proven a mental injury, it is not required as a matter of law. Where a psychiatric diagnosis is unavailable, it remains open to a trier of fact to find on other evidence adduced by the claimant that he or she has proven on a balance of probabilities the occurrence of mental injury. And, of course, it also remains open to the defendant, in rebutting a claim, to call expert evidence establishing that the accident cannot have caused any mental injury, or at least any mental injury known to psychiatry. While, for the reasons I have given, the lack of a diagnosis cannot on its own be dispositive, it is something that the trier of fact can choose to weigh against evidence supporting the existence of a mental injury.
The principles to be applied in setting the damage award for injured feelings and loss of dignity and self-respect were seen generally as follows184:
1. the objective seriousness of the conduct;
2. and the effect on the particular applicant who experienced discrimination:185
It was noted that dismissal from employment is generally regarded as more serious than an isolated comment. Similarly, the more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.
Damages will be generally at the higher end of the range when the applicant has experienced significant consequential emotional issues.186
Those issues relevant to this latter issue were expanded as summarized below in the review of sexual harassment damage awards.187
There are several further principles which have emerged as guide posts for the determination of fair damage awards for emotional harm and injured feelings. The purpose of such an award to restore the victim to her former position and yet to avoid over paying in the process. The award should not be high as to be “windfall compensation”188. This being said, the award must be significant enough to avoid “minimizing the impact of the wrongdoing”189. The award must also be intended to prevent future discrimination and “act both a deterrent and an educational tool”190 191.
None of the above words, however,is particularly helpful in determining the range of expected awards in real dollar terms. The sums awarded are reviewed below to provide some realistic expectations. While it may be true that the principle of stare decisis is not applicable to administrative decisions, in the real world the awards tend to follow an apparent pattern192 and indeed such is the synthesis of the cases, although there is a noticeable difference in the expected range from jurisdiction to jurisdiction.
There is also a significant distinction between the sums typically awarded in common law tort cases and similar awards made in human rights cases.
This very issue was the subject of debate in the initial review193 of the Alberta tribunal’s decision with respect to an award of $25,000, in that this sum was beyond the then expected range. The court upon a first review of the tribunal decision expressed the view that tort cases “could provide guidance on the quantum of damages” to be awarded in the human rights venue194. The Court of Appeal declined the invitation to comment upon the use of such tort awards for psychological harm. It did observe that sums awarded195 were “on the low end” of what it would have considered proper in a civil context.
The award is similar to the tort concept but the reality is that the sums awarded have been, for the most part, dramatically lower that the awards made in a civil case. One might ask why should this be so? There is no logical reason for such disparity. There is also a significant difference in the awards of future income loss. Tribunals do not award such amounts are set by the civil courts.
The damage summary above the index reviews tribunal and civil awards.
Ontario’s Human Rights Code prior to June 30, 2008
Ontario’s present Code became law as of June 30, 2008. It is important to understand the issues in the historic interpretation of the prior Code in the use of such precedent damage awards under the former Code in the modern context as it may be confusing to reference certain of such past authorities today.
The former code, unlike the modern version, contained a provision was described an award for “mental anguish” due to wilful or reckless conduct and set a cap for such an award at $10,000. Many early decisions misconstrued this provision as setting a maximum sum for any award of compensatory damages196.
This issue was ultimately resolved as late as February of 2001197 when it was determined that this statute allowed for awards of general damages without a ceiling in addition to the “mental anguish” $10,000 cap as set out in the statute198.
For these reasons, readers of cases under the former Ontario Code should be alive to the historical issues as noted above. Only cases which clearly embrace the authority of the Board to order general damages over and above the $10,000 mental anguish award should be used in the modern context.
Secondly, to receive an award of “mental anguish”, it must be recalled that the complainant was formerly required to prove conduct which met the test of “wilful or reckless199”. Such awards were made only where “there was a relatively high degree of mental pain and distress”200 201 These awards were made frequently in sexual harassment cases.202
Setting the Award for Compensatory Damages – Sexual Harassment
The general test for the assessment of general damages involves an assessment of the following factors203:
1. the humiliation experienced by the complainant;
2. the hurt feelings experienced by the complainant;
3. a complainant’s loss of self-respect;
4. a complainant’s loss of dignity, self-esteem and confidence;
5. the experience of victimization;
6. the vulnerability of the complainant; and
7. the seriousness, frequency and duration of the offensive treatment.
It has been generally accepted that the awards made in sexual harassment cases should be higher than usual compensatory awards due to the likelihood of more severe personal consequences and the inherent vulnerability of the victim204. The unstated reason may be that the conduct is clearly intentional, for personal gratification, and often in an abusive relationship with an inherent power imbalance. It is unlike the usual human rights violation.
The factors which have been determined to be influential in shaping the sum to be awarded for emotional harm in a sexual harassment case have been stated to be as follows205:
1. the nature of the harassment, that is, was it simply verbal or was it physical as well;
2. the degree of aggressiveness and physical contact in the harassment;
3. the ongoing nature, that is, the time period of the harassment;
4. its frequency;
5. the age of the victim;
6. the vulnerability of the victim; and
7. the psychological impact of the harassment upon the victim.
The amount should not be set so low as to be a “licence fee”206.
It has been noted that the manner in which the employer has responded to the claim should be a factor in determining the quantum of the sum to be awarded as compensation. In addition the existence of a harassment policy and its enforcement207 will also be considered in this context208.
The financial status of the respondent has no relevance to the award209, that is, the difficulty the respondent may have to pay the award.
There is usually no punitive component to the award210.
The tribunal will consider all relevant factors. The fact that the incident may be an isolated occasion and was pre-meditated and no medical evidence was led, may all be factors in reducing the size of the award211.
Certainly medical evidence will be preferred and will likely allow for a more generous damage assessment, but it is not mandatory to prove the degree of emotional trauma suffered by the applicant212.
This was also the view of the Supreme Court of Canada in the 2017 decision of Saadati v Moorhead in a tort claim asserting damages for a psychiatric illness, in which no medical evidence was called at trial.
In Ontario, the modern damage awards for sexual harassment tend to cluster in the range of $20,000 to $25,000. The broad spectrum has been noted to be from $12,000 to $50,000213, the award being affected by the factors as discussed above and also whether there was a reprisal, which may or may not be considered as an independent award214. The award has also been influenced by whether the victim suffered a loss of employment, notwithstanding that this may lead to a discrete claim.
An award of $12,000215 was made due to verbal and modest physical touching216.
A general damage award of $16,000217 was influenced by the flawed investigation and the finding of reprisal for an incident which was serious, but isolated.
The sum of $17,500 was awarded to a probationary sales representative218, certainly in a position of a power imbalance219.
The sum of $18,000220 was awarded to a person employed as a commission sales representative. Her boss had asked her what kind of underwear she wore, told her when she crossed her arms he could not see her chest, referred to her cotton candy soda pop drink as “cotton panties’, offered to take her to a hotel for her birthday, asked her to sit on his lap, said he wanted to jump her, asked her for oral sex, and to sleep with him.
An award of $25,000221 was made reflective of a two year pattern of sexual harassment by a manager to a person in a subordinate position, aged 29. It was accepted that the complainant had immediately objected to the behaviour222.
Similarly such an award of $25,000223 was made in favour of an 18 year old co-op student who had finished her first year of college. She was terminated as an act of reprisal due to complaints of sexual harassment224.
The same award of $25,000225, which was however inclusive of a $10,000 mental anguish sum226, to a 24 year old single parent who had been harassed while in the middle of a custody fight227.
This sum was also awarded against a respondent who also had slapped the complainant’s bottom, put his hands under sweater and touched the lower part of her breasts, pinched her bottom, attended at her apartment and pushed her onto her bed, tried to grab her inner thigh and came to her home without invitation. He also pleaded guilty to a charge of criminal harassment228.
This same award was given to a student in a law clerk program, who was sexually harassed by being caressed on her lower back, called “hairy”, asked her if her thong was comfortable and was told that it looked good, was spanked on her buttocks229.
An award of $35,000 was made, in which the respondent made frequent references to the complainant’s past sexual relationships, questioned her about her sexual relationship with her husband, amongst other offensive behaviours230. She had been racially and sexually harassed231.The prior General Manager testified that she was instructed to find a pretext to terminate the complainant because of her complaints, a course which she refused to follow.
An award of $40,000232 was made in a context in which the offensive conduct was found to be “persistent, unrelenting” and one act of sexual aggression which resulted in a criminal charge233.
The same award of $40,000234 was made in a situation in which the personal respondent told the complainant that he wanted to date her, and asked her out several times, always being declined. Following her pregnancy, during which he paid no attention to the complainant, and after her return to work, he wrote her letters advising that he loved her, and that he wanted to be with her, even though he was married. In the letters he said he wanted to have sex with her. He left her a note stating that if she did not sleep with him, he would force her to do so.
He also began to touch her in a sexual way, touching her legs, breasts and buttocks. He frequently tried to enter the bathroom with her. On one occasion, he pushed the bathroom door open and touched her breasts and tried to insert his fingers into her vagina.
On more than one occasion, he masturbated and called the applicant to come and see him. He called her demeaning names and assigned her work which was belittling, such as washing dishes and peeling vegetables, which was not required of other servers.
She sought medical help and was given anti-depressants. She suffered from migraines, loss of sleep, and lack of energy. The personal respondent was charged with criminal assault.
The sum of $45,000235 was ordered in favour of a woman who was subjected to a single severe incident of harassment. The male forced the applicant to touch his genitalia and ejaculated on her. He also touched her breast and tried to pull her pants down.
An award of $75,000 was made to a young woman employed as an unpaid student intern.
The complainant, who was but 15 years of age at the time of the offensive conduct, was working in her first employment at a tattoo parlour. The owner and “controlling mind” of the business, even more tragically, was a personal friend of the victim’s parents as was his spouse. This personal respondent had in fact borrowed money from the victim’s parents to open the business.
The parties had agreed that the Tribunal may make reference to the transcript of the criminal proceeding against the personal respondent, to which a guilty plea had been tendered. The judge in the criminal case summarized the most dramatic aspects of the offensive conduct as follows:
On August 27, 2014, both “G.M. and [personal respondent] were at the tattoo shop. They were alone after other staff members left for the evening. Sexual discussions and activity occurred. “G.M.” produced nude photographs of herself. [Personal respondent] touched her buttocks and minimally, (for two seconds), inserted his finger in her vagina. He showed her his penis and invited her to touch it. She did so to appease him. He touched and put his mouth to her breasts. She said it lasted about five minutes. She testified she resisted the sexual activity telling him that he had a wife who was close to her mother. She also related he offered her money and a free tattoo for sex.
A total award of $50,000236 was made to a male applicant which was apportioned as a total of $10,000 against two respondents individually, $25,000237 against the employer, and $15,000 for reprisal.
The then highest award of $150,000238 was made in favour of one complainant and $50,000 to a second in a particularly unattractive fact situation.
Both complainants were migrant workers from Mexico in Canada on temporary work permits and threatened with termination and hence deportation, failing each one’s willingness to comply with the owner’s demand for sexual favours. The tribunal found the conduct to be unprecedented239. The second victim, 22 years old, was required to leave Canada and return to Mexico.
The highest compensatory award to date of $200,000 was made to a woman who had suffered ongoing sexual abuse for 29 years. She resided in an apartment also owned by a related company. She was the sole supporter of a disabled son.
She was required to submit to various forms of sexual demands, including sexual intercourse, over a period of 18 years. Following her report of this conduct to the police, she faced eviction. The criminal charges were dismissed. The award was made against the owner of the business personally and against the company.
Until 2001, the highest award for sexual harassment was $10,000240. In 2011, the sum of $12,500 was ordered due to harassment241 which was found to be demeaning, provocative and aggressive, yet without any physical component.
$15,000 was ordered in a case involving verbal sexual harassment, including requests for sex242 and inappropriate touching.
The awards have risen since 2001243 and generally have generally followed a similar range as in Ontario244. A young Filipino mother who was hired as a housekeeper and required to perform sexual acts “at the whim” of her employer was awarded $50,000245. The highest award made to date has been $75,000246, but this was not a sexual harassment case. This decision was set aside upon judicial review but later reinstated by the Court of Appeal. The latter noted that the tribunal should not be bound by what had been considered as a historic “range” of damage awards and that is was not “patently unreasonable” for the tribunal to award a sum in excess of the prior maximum, given proper consideration of the evidence before it.
An award of $25,000247 was made when the applicant was sexually assaulted by the owner of the company in a hotel room where the work crew was stationed out of town248.
Fact situations like those above cry out for a punitive award.
The low end of the scale is likely in the range of $3,000 to $4,000. In a situation where the conduct was limited to offensive language, yet insensitive and demeaning and persistent, made to a vulnerable young woman in need of employment, without physical contact, with modest psychological impact, the sum of $4,000 was set as proper compensation249.
An award of $5,000 was made in a context of verbal offensive conduct, without affirmative evidence, medical or otherwise of the impact upon her, a disparity in age between the victim and the offender, yet causing the termination of the complainant’s employment, in part, due to her refusals250.
An award of $5,000251 was made to the complainant, living at a job site in northwestern Alberta, who had exited the shower and noticed a male camp maintenance worker watching her. A few days later, the same man was standing beside her bed when she awoke.
A similar award of $4,500 was made to a woman who was subjected to abusive behaviour of shoulder rubbing, being blown a kiss and retaliatory conduct of a dismissal letter and false accusations contained within it252.
Until the decision of the Alberta tribunal awarding $25,000253, the rough maximum was $10,000. The Alberta Court of Appeal noted in this case that prior generally damage awards “have been low, arguably nominal”. This was not a case of sexual harassment but it does set the bell weather for the future of such awards.254
As difficult as it may be to believe, the legislators of Saskatchewan have placed a limit on the sum which may be awarded for compensatory damages for a sexual harassment case, in fact any human rights violation, as $20,000255. This includes any award for punitive damages. A person subjected to the most brutal forms of sexual abuse in a workplace environment will see such a maximum recovery256.
At one time, the legislated cap was $10,000257. It is not surprising that the awards are modest. In the era of the $10,000 maximum, a 19 year old complainant, subjected to verbal and physical harassment, suffering from lost sleep, which affected her academic pursuits resulting in the postponement of her exams recovered $6,000258.
A 19 year old woman259, economically vulnerable, subjected to persistent physical and verbal harassment, suffering from severe injury to self-esteem and hurt feelings was awarded $2,400, “given the aggressive harassment”.
A woman suffering from a “serious physiological impairment” who reported “reported sleep disturbances, shaking, crying and nightmares” was given compensation of $2,500260.
A complainant who was the subject of one aggressive act of a physical nature, at age 21 or 22, highly physically and economically vulnerable, and subjected to verbal abuse on the same day, showing impact on her self-esteem, without “significant physiological impact” was awarded $2,000261.
An award of $15,000 for general damages and $5,000 for punitive damages262 was made in favour of a woman who was subject to physical contact by the owner of the business which caused severe emotional harm, including “anxiety, depression, flashbacks and panic attacks which continued for several years.”
The panel noted the Ontario law which suggested a range of $12,000 to $50,000 and stated that awards in other provinces have been higher than that of Manitoba. Nothing was done to correct that. The facts in this case were said to support an award in the high end of the range263.
Prior awards reflected the panel`s comments. They had indeed been low. The highest previous award was $7,750264 based on abusive comments and conduct towards a young woman by a customer which the company tolerated. The sum of $5,250 had been awarded due to inappropriate sexual jokes and verbal solicitations265.
An award of $5,000 was made to a woman whose manager confided to her repeatedly about his personal life, encouraged her to leave her spouse, made unwelcome comments of her physical appearance and tried to create situations where physical contact with her would be possible all over a period of years266.
A similar award of $7,000267 was made to a woman who was the subject of sexually harassing attitudes, behaviours, insults and reprisals over many months.
As noted, one Quebec decision did allow for $5,000 as a punitive damage award due to the company’s adverse treatment of its workers268. One would expect a severe sexual harassment claim would give rise to a similar award.
The awards in Nova Scotia are low. In a decision of 2007, the range of expected awards was from $1,000 to $5,000269. Such an award of $3,500 was made for conduct which was both verbal and physical270 One reason for this may be that medical evidence was not routinely offered, or at least this was suggested by the Nova Scotia Board of Inquiry271. In the same case the Board ordered $3,000 in general damages and $7,000 for reprisal and a further $3,000 for reprisal against the employer due to the actions of its Board.
The sum of $15,000272, an inordinately high sum in this jurisdiction, to the male complainant who was subjected to severe harassment by a male colleague273. This is likely to be set as the high end of the expected range.
An award reflective of modest touching and verbal abuse was made of $2,000. The Board noted that the employer had acted promptly to deal with the allegation274.
Prince Edward Island
An award of $50,000275 was made by the PEI Human Rights Commission in a complaint which was based on gender discrimination and sexual harassment. The complainant had lost her livelihood as her licence to practice her profession was withheld. The events of adverse treatment took place over an extended time period and her reputation was also damaged by the conduct in question276. This is certainly an award at the high end of the scale277.
An award of $5,000 was made due to explicit and ongoing sexual harassment278.
The awards allowed also are very much on the low edge. A woman was subjected to “not physically aggressive” conduct over a two week period was found to be at the “most mild end of the spectrum” and awarded $5,000279, this sum being awarded upon court review. The tribunal had found liability and ordered no compensation.
North West Territories
It is difficult to read the words of a 2008 decision and believe that the accuracy of the statement that damage awards in human rights cases have been traditionally capped in the range of $2,000 to $3,000280. The tribunal, however, in the case awarded $15,000281 to a young apprentice mechanic in a vulnerable position, harassed by her supervisors, subjected to a physical assault, crude sexual remarks, pornography and threats of physical harm. Punitive damages were also awarded of $2,500 and $5,000 against the personal respondents.
There is a legislated cap on the sum to be awarded for compensatory damages of $20,000282.
As noted above, the federal act does have a provision which allows for an additional damage award for what is, in substance, punitive damages. The vocabulary used is “special compensation” for conduct which is wilful or reckless. Sexual harassment is routinely considered as such conduct. There is, however, the same legislated cap on the sum to be awarded of $20,000.
The amendments allowing such two awards came into effect in June of 1998. All awards prior to this date must be read with this qualifier at hand.283.
As recently as 2009, the Canadian Human Rights Tribunal offered the view that awards in the range of $12,000 to $15,000 are reserved for “the most egregious discriminatory acts”284.
Certainly where the questioned conduct is unwelcome or reasonably to be interpreted as such, this special award is appropriate. An award of such special sum of $2,500 was made in addition to compensatory damages of $5,000 in the context of a single issue, albeit with a physical altercation of a “brief duration”285 Additional damages were also awarded for retaliatory conduct in the sum of $2,000 plus a further $500 as “special compensation”.
Each of three complainants were awarded $10,000 as “special compensation” given the vulgar and offensive remarks and propositions made by the personal respondent286.
An award of $12,000 of compensatory and $15,000 of “special compensation”287 was made in a context of severe and repeated contact, inside and outside the workplace, causing fear for the complainant’s well-being and unwanted physical contact on one occasion.
A 2004 award allowed the complainant the sum of $2,500 and $2,500 for “special compensation” in a situation in which the respondent was found naked on her bed touching her in sexual manner. This was the quantum of the relief sought by the complainant.288
Awards of $16,000 and an additional sum of $18,000 as “special compensation”289 was ordered in a situation where the personal respondent was sexually obsessed with the complainant over a two year period, was humiliated resulting in anxiety and depression causing the need for an emotional distress leave. This conduct caused the victim to leave the town in which she lived and start a new life elsewhere.
The word “reprisal” can lead to confusion as there are two types of such retaliatory conduct often described as “reprisal”. The first is such actions taken by the employer in response to the filing or threatened filing of any human rights complaint. To make the analysis clear, this is referenced as “general reprisal”.
The second is conduct of the employer or an individual against a person who has not acceded to demands for sexual favours. This conduct is generally defined as a form of sexual harassment which for this purpose, it will be referenced as “sexual reprisal”290.
All Canadian jurisdictions prohibit sanctions being taken against an individual who has commenced a human rights proceeding. The statutory wording varies from province to province and territory to territory but the intent is the same, to allow every person the ability to enforce his or her rights under this act. Certain jurisdictions provide for wider protection which is given to any person who assist the complainant in the bringing of the case with or without testifying.
There will be issues, however, as to how this remedy is enforced. The most significant question is whether the general reprisal remedy is a stand-alone claim which is independent of success in the substantive complaint291.
It is generally conceded that to prove general reprisal, intent must be shown. The intent to reprise may be inferred from the facts292 and is a matter of credibility293. To constitute reprisal, it is sufficient if the conduct is “at least in part” due to the complaint or threatened complaint294.
To show general reprisal, the complainant must show a link between the alleged retaliatory conduct and the threat of or the filing of the complaint, which is normally proven by inference as direct evidence is invariably non-existent. The second aspect of the test is to show that the offensive conduct is, at least in part, an intentional response to the complaint295.
There has been some issue as to how liability for such reprisal should be established. Certainly this will follow where the intent of the employer has been proven, as above.
One line of thought is that the issue of reprisal should be viewed from the perspective of the complainant. Would it suffice that the conduct of the employer may be reasonably interpreted as retaliatory to allow for such a remedy, as was the decision of the Canadian Human Rights Tribunal296? This was also the decision of the Ontario Board297, as has been accepted by the B.C. tribunal298, finding that the perspective of the complainant should be the test, not the intent of the employer. This will particularly be the case where there is an ongoing employment relationship. For this reason, complaints of reprisal must be “dealt with speedily, efficiently, thoroughly and seriously299”
It does appear unusual that a statutory violation of retaliatory conduct, seemingly an intentional act, would be determined by the views of the employee.
The Board’s decision in Entrop was ultimately heard by the Ontario Court of Appeal. This court did not debate the test for reprisal on the issue above. It is clear from the Court of Appeal decision, however, that it viewed the findings of the Board as referring to conduct which was intentional.300 Notwithstanding the line of cases referenced in B.C., it would appear logical that for there to be a finding of reprisal, it is the intent of the employer that should be proven, not what a reasonably minded employee would believe to be so.301 302 303 304 This does appear to the law in most jurisdictions today.
It is not necessary for the complaint actually to be filed. It is sufficient that there was a threat to do so305. The sole exception to this principle is the law in B.C., which has mandated that there be an actual complaint filed. Oddly enough, the threat to do so will not suffice306. This seems in need of revision.
To succeed on a general reprisal claim, the substantive claim which has been threatened or actually brought, need not succeed307. The applicant cannot threaten or bring a claim which she knows lacks merit. She must, however, hold a genuine belief in its merits308.
A reprisal claim may also lead to a lost income award309, again independently of the merits of the substantive complaint.
The employer may, however, institute its own civil claim alleging that the human rights action is defamatory. This is not reprisal310; however, the civil action is protected by absolute privilege311. This applies not only to actual litigation but also the threat of it312.
This being said, the commencement of a legal action for defamation against the complainant, which was served upon her at the civil rights hearing at a break during cross-examination was found to be conduct, in addition to other actions, of reprisal.313
The commencement of a small claims court action and a threat of criminal proceedings for theft was also found to be reprisal314. In neither of these above cases was absolute privilege argued315.
Sometimes the award made for general damages stands alone316. Often it is included as a factor in the assessment of general damages317.
Just as with the lost income claim where termination resulted from reprised conduct, so can other damages which followed from such offensive conduct, such as a lost salary increment318.
The sum of $500 for reprisal plus $5,000 for “special compensation” was awarded due to the description of the complainant, seen however as a resilient person, as a “vile acidic” Jew319. Given the “limited impact”, the retaliatory conduct had on the complainant, in a separate case, the sum of $2,000 was ordered as general damages plus $500 for “special compensation”320.
An award for reprisal damages of $15,000 was made in the context of a finding of a poisoned work environment, which was linked to the termination decision as a reprisal. In this instance there could have been, but was not a lost wage claim as the applicant had found alternate employment321.
In this case, compensatory awards were made totaling $50,000. No income loss was allowed as the applicant had found other employment. The submission was made that due to the emotional turmoil suffered by him, he was unable to achieve expected sales numbers and an income loss was made on this basis. It was not allowed as the compensatory damages were said to address such a claim.
The awards made included $15,000 for reprisal, $25,000 due to the poisoned work environment. Awards were also made personally against two employees in the sums of $8,000 and $2,000 each for sexual harassment.
Sexual reprisal, that is the refusal to accede to sexual solicitations, following which negative repercussions ensue, is a substantively different offence. As noted above, in Ontario such an offence does not attract employer liability322. A further significant difference between the two offences is that with respect to the general reprisal provision, there is no need to prove the merits of the case which is threatened. A legitimate belief will suffice.
The general trend of “sexual reprisal” is to define such conduct to be within the rubric of sexual harassment323.The employer will then defend in the normal course which will include the “due diligence” defence as may be allowed in the relevant jurisdiction.324.
Poisoned Work Environment – The Failure to Prevent Harassment
A poisoned work environment is one which essentially is allowed by the employer to evolve by taking no affirmative steps to ensure the workplace is compliant with the code obligations. There generally is no specific statutory provision which states words to this effect.325.
An employer may be liable for such an offence by failing to prevent harassment or respond to it326. This is discussed in detail momentarily. The law is not quite as certain on this subject as this statement suggests.
A poisoned work environment will arise when management is aware or should be aware or an adverse workplace but allows this condition to be tolerated. Management itself need not be active participants in the wrongdoing. Allowing it to exist is enough327 328
The factors to be considered include a consideration of all the relevant circumstances, including the seriousness of the conduct, their significance, their effect on the workplace, the role of the person making them, the effect on the applicant, and the reaction of the respondent to any concerns raised.
Even though the company may respond properly to a complaint, it still has an obligation to ensure that it takes affirmative steps to ensure a proper work environment. The failure to do so may lead to the creation of this poisoned work environment.329 In one instance, the tribunal determined that the employer had been aware of sexual comments in the workplace and should have hence undertaken a broader investigation or taken stronger measures to create a safe workplace.330
The same conclusion was reached when the employer failed to allow a work environment which was free from discrimination due to the complainant’s sexual orientation. It concluded that negative and discriminatory attitudes towards gays and lesbians were permitted by the employer to exist. The complaint was not addressed by management, which contrasted to the serious investigation it did conduct with respect to complaints against the applicant. It also found that the employer did not have in place a proper process or training program to educate and fight against discrimination against gays and lesbians331.
The employer has an affirmative duty to take the initiative to cause workplace to be human rights compliant. It cannot offer as its defence that the complainant was a participant, for example, in the same offensive language332.
To this submission, the tribunal must look to the question of whether it was the accepted environment which caused this behaviour333. It remains the overall objective and mandate of the employer to cause the cessation of workplace vexatious comments or conduct334.
In one case335, the employer had failed to investigate and accommodate an employee undergoing gender transition and insisted on treating the applicant as a man, when this did not reflect her sex and gender identity. This, in turn, exposed the applicant to workplace harassment and loss of dignity. It had reason to take the initiative to investigate and take remedial action, which it failed to do and also terminated her employment.
The remedy for a finding of a poisoned work environment may include not only a compensatory sum for injured feelings but also a claim for lost income where the employee has asserted such working terms and conditions were abusive to the extent that he or she could not continue in with the employment relationship.
Where there has been a finding of a poisoned work environment, the decision made by the employer to terminate must be examined in the context of that finding to determine whether the termination was tainted by this circumstance.
In the Smith case referenced above, an independent award was made for the poisoned work environment of $25,000.336
An award was made of $22,000 plus eight months’ lost wages in a case dealing with multiple code violations, one of which was a poisoned work environment. Others include a termination which was directly stated as due to gender.337
Where there has been a finding of a poisoned work environment followed by a termination of the complainant, the tribunal must look at all surrounding circumstances to determine if the protected human rights ground was a factor338 in the termination.339 340
Duty of the Employer to Investigate
The investigation of a sexual harassment complaint, and indeed any human rights complaint, is, of course, is a prudent course of conduct for many business and humane considerations, legal issues aside.
When the complaint is first considered by the employer, the company usually has no firm conclusion as to whether the issue will be pursued by civil tort or contract action, a human rights complaint or by a civil action incorporating human rights relief.341
The remedies available to the plaintiff for failing to provide a proper investigation in cases alleging serious conduct may be severe. Recent civil cases have been generous in the awards of aggravated and punitive damages.342 Generally the decision to conduct a proper and fair investigation will be a defence to such incremental claims, when the termination of the relationship has been effected in good faith, even though a cause defence has not succeeded.
A prompt and unbiased investigation will hence be in order for multiple reasons, not simply because the human rights process mandates it.
The interpretation of the employer’s obligation under the Ontario Code, upon becoming aware of an alleged violation, is to conduct a reasonable investigation. There is no specific statutory provision mandating such steps. The Code has been interpreted to create this obligation to ensure that the rights created by it are meaningful. An additional reason to mandate such a process is to cause the immediate cessation of any offensive behaviour.343 Such a duty makes perfect sense.
There is some dispute in the law in Ontario as to whether the failure to do is independently actionable, regardless of the need to prove a Code violation, as is discussed momentarily344.
This duty to investigate was addressed in 2005 by the Tribunal (Garfield) in Laskowska v Marineland of Canada:
It would make the protection under subsection 5(1) to be a discrimination-free work environment a hollow one if an employer could sit idly when a complaint of discrimination was made and not have to investigate it. If that were so, how could it determine if a discriminatory act occurred or a poisoned work environment existed? The duty to investigate is a ‘means’ by which the employer ensures that it is achieving the Code-mandated ‘ends’ of operating in a discrimination-free environment and providing its employees with a safe work environment.
This case has become the hallmark for the establishment of this obligation.
This duty arises once the complainant has made known the allegations of a Code violation. It is not a condition precedent that there be a complaint filed.345 The test to show a prudent and fair investigation has been defined to be one not limited to the conduct following the company’s awareness of the complaint, but also prior to it and also the reactive steps taken to resolve the complaint. It is hence important for the company to put in place policies and procedures to ensure that its employees are aware of the protections afforded by the workplace and the commitments that the company has made to investigate such concerns.
These considerations were examined and set out as follows:346
1. Had the company taken proper steps to put in place a human rights policy and establish a complaint mechanism;
2. Had it given its management proper training to implement it;
3. Were employees made aware of such a policy;
4. Once the complaint was known, did the company treat it seriously, deal with it promptly and sensitively;
5. Did the employer reasonably investigate the complaint;
6. Did the company resolve the complaint fairly, provide a reasonable resolution, provide a proper work environment consistent with the Code and communicate its findings to the worker.
These principles are a summary of what has been referred to as the “Wall” test.347
The overall question to be answered is did the employer, given all the circumstances, act reasonably. In the application of this test, the overall obligation of the employer is not to have acted based on a standard of perfection, but to have acted fairly.
Needless to say, it is essential to the investigative process that the employer shows neutrality and lack of bias to both sides of the dispute.348 This is a proposition which needs no authority. The investigator must have no inherent prejudice or pre-judgment as to the issue. However, there must be some modicum of reasonableness injected into this process.
In one instance the Tribunal made certain comments with respect to the identity of the investigator selected by the employer, stating that this person should possess human rights experience and that there be an objective view of neutrality in the process. To that issue, there must be agreement. All these factors suggest an external investigator would be most suitable choice, as was indeed recommended by the Tribunal in this instance such as outside counsel or an independent investigator.349
However, in the same case the Tribunal went so far as to suggest that there be both a female and male investigator in the case of an allegation of sexual harassment. This goes to an unnecessary extreme. It also expressed the view that in the event of a complaint based on a specific race or religion, the investigator be a person from a similar background to allow for “insight into the meaning of events and comments”. This also goes far beyond a rational purpose and may, if anything, cause an inherent bias, at least an appearance of one.
The Tribunal did find the investigation in Murchie to be severely lacking. The reasons for this conclusion will be instructive of how to plan for and complete a proper investigation in day to day practice. As noted above, it is a three step process, including (1) preventative steps in place such as an effective policy and a complaint mechanism which has been properly communicated to the workforce, followed by (2) a prompt and fair investigation which has resulted in (3) a fair resolution which has been well communicated and any necessary remedial steps taken. It is not simply step 2.
A summary of the failings of the employer in this instance were as follows:
1. The sexual harassment policy was not followed;
2. The complaint mechanism was not functional;
3. It was improper that the offender was told of the result before the complainant and that he had been allowed to return to work before the complainant;
4. The investigators had no human rights training;
5. Each of them were friends of the complainant;
6. One of the investigators was removed in the course of the investigation;
7. The complainant was resented by management for bringing the complaint.
The need for proper training before conducting such an investigation was also noted in Chuvalo v Toronto Police Services (Overend). A flawed investigation was similarly found in this case, one particular aspect being that the investigator was performing his first workplace investigation and had received no training for this purpose.
This again makes perfect sense and reflects concerns which may be readily addressed and corrected.
In Nelson v Lakehead the employer was also found to be in violation of its obligation to investigate the complaint fairly. Liability was found on this ground, notwithstanding that the substantive complaint of age discrimination was dismissed. The employer’s response to the complaint was determined to be dismissive as it failed to demonstrate that it took reasonable steps to investigate the complaint. Such other deficiencies in the investigative manner included:
1. The Dean used an informal inquiry process;
2. The Dean failed to discuss the issue with the complainant;
3. He failed to follow the school’s human rights policy;
One would expect that the person in charge of the investigation would follow and adhere to the very policy which governed such a circumstance. This case provided a graphic illustration of how not to handle such an investigation.
The HRTO considered in the above case of Chuvalo v Toronto Police Services (Overend) the quality of the investigation performed with respect to the internal human rights complaint of sexual harassment.
The Tribunal was troubled by the standard employed by the investigator that the complaint required independent corroboration, an improper mandate, likely due to his apparent lack of training, referenced above. In addition other factors which pointed to the investigation as flawed included a finding that he had ignored certain probative evidence which was before him.
Apart from liability on the substantive complaint, an award of $8,000 was made for the failure to investigate the complaint fairly.
The Supreme Court of Canada also noted in its 1987 decision of Robichaud v Canada, in obiter, that an employer which responds quickly to a complaint by developing a scheme to remedy and address recurrence of a human rights violation will not be liable to the same extent as one which fails to address such issues.
A parallel conclusion was reached in Payotte v Alarm Guard Services. No investigation was undertaken to determine the validity of the complaint. The failure of the employer to respond to the complaint was found to have exacerbated and compounded the employee’s right to be free form harassment, in this case due to sex and sexual solicitation. An independent award was made for this breach of the duty to investigate of $5,000. As noted elsewhere in the decision, this also adversely affected the credibility of the company’s defence.
This will be an important issue in a failure to investigate claim, namely, that the very failure to take immediate action has contributed to the fate of the victim as the harassment, as in this instance, has persisted.
The Tribunal in Harriott v National Money Mart, made a similar finding of a failure to properly investigate the complaint of Ms. Harriott. As noted, one reason to put into place an immediate investigation is to minimize the harm suffered by the victim. In this case, once again, due the failure of the company to act promptly, the sexual harassment continued unabated. In this instance, further failings in the investigation were found due to the delay in the process and further that the company failed to keep the complainant apprised of the status of the investigation.
A total award was made of $30,000 inclusive of the damages attributed to the failure to investigate of $7,500.
As noted in several of the cases referenced above, there may be liability found upon the employer, even though a substantive violation of the Code has not been proven.350
In Frolov v Mosregion, the male complainant asserted a female was sexually harassing him. The employer did not act upon becoming aware of the complaint, arguing that it was unaware that men could experience sexual harassment. This issue went to the need to impose an objective test as to the standard reasonably expected of the employer. The fact this employer was not aware of its potential liability was of no moment to the issue at hand. Its ignorance of the need to act could not make a viable defence.351 Liability was accordingly found for the independent failure to conduct an investigation.
The employer’s response to the complaint was “stop complaining”, “be a reasonable man”, “you should be pleased that she pays attention to you”. This conduct was found to be in violation of subsection 5(1) of the Code due to the failure to investigate and constituted discrimination on the basis of gender. The failure to conduct a proper investigation was found to have affected the applicant’s personal well-being. The total award for both violations was $7,500.
Unlike other sections of the Ontario Code which do not make the employer vicariously responsible for the conduct of its employees, such as sexual harassment complaints, the responsibility for a failure to investigate a complaint rests upon the employer.
The case of Sears v. Honda Canada Mfg 352 involved a complaint to the Ontario Human Rights Tribunal by an employee of Honda Canada, who suffered from several vision related issues.
He alleged that Honda failed to properly accommodate him, and that he had been the victim of harassment, which harassment had not been appropriately addressed. Specifically, he alleged that a co-worker was harassing him on the basis of disability, referring to him as a “blind dog” and by poking him in the ribs. He asserted that Honda had failed to fully investigate his complaint.
In this case the Tribunal once again confirmed that there is a duty upon an employer to investigate and that a failure to do so can result in liability even where the allegations are ultimately found not to be substantiated. In assessing whether or not Honda met its duty to investigate, the Tribunal applied the certain criteria in determining whether or not Honda had “reasonably and adequately” responded to an alleged incident of discrimination, which in essence was the Wall test as stated above.
The Tibunal ultimately found that Honda had not met its obligation to investigate, and by doing so caused Mr. Sear’s continued stress and showed lack of respect for Mr. Sear’s dignity, feelings and self-respect. As a result, the Tribunal awarded damages for intangible losses of $35,000 to Mr. Sears. This is the most significant such loss for a Code violation to date.
The basis of the liability finding was as follows:
…I find that the corporate respondent did not have an adequate anti-discrimination/harassment policy, and a proper complaint mechanism; that is, one that adequately addressed common circumstances that might arise in cases of discrimination. The corporate respondent adduced its policies in evidence, but there is no evidence that adequate training was given to management and employees. I find that Mr. Moulding’s investigation of the applicant’s first complaint was inadequate, and did not meet the “reasonableness” standard. It is uncontested that the second complaint was not investigated, and there was no follow-up.
The above case aside, the range of damage awards for a finding of failure to investigate has tended to be modest, in the range of $5,000 to $7,500.353 The applicant should be mindful of the need to introduce evidence to show the impact which a failure to investigate had upon him emotionally and any other adverse consequences.
To this end the evidence led in the Honda case above is instructive. The applicant introduced medical evidence as to the impact the workplace conditions had upon him, his need for anti-depressant and anti-anxiety medication and the need for psychiatric counseling. The determination of this award was reflective of this evidence:
On a review of all the evidence, I conclude that the applicant suffered humiliation, hurt feelings, anxiety and loss of self-respect. The corporate respondent’s failure to adequately investigate his complaints obviously led to a lack of confidence and was not compatible with respect for the applicant’s dignity as a human being. While it is difficult to judge how much of the applicant’s humiliation, loss of self-respect and anxiety can be attributed to the corporate respondent’s failure to adequately address his complaints of discrimination, this failure clearly exacerbated his distress.
In the circumstances of this Application, which include a lengthy period of failure to accommodate and medical evidence of related depression and anxiety for which the applicant required treatment, I conclude that an appropriate order for compensation for intangible loss is $35,000.
There are no cases awarding lost income or reinstatement but there is no reason to exclude such claims in the proper context, such as that of a woman who has continued to experience harassment due to the failure of the company to investigate and elects to cease her employment.
A failure to make a proper response was found in Sutton v Jarvis Ryan, but no financial compensation was ordered. The award appeared to be influenced by a finding of no liability on the substantive complaints, a conclusion which is contrary to the reasoning of prior and subsequent decisions, set out above, yet supported by the case which follows.
The recent decision of the HRTO in Scaduto v Insurance Search Bureau (Scott) came to the stated conclusion that there was no independent relief available due to a failure to investigate, given a failure to find liability. The Sutton decision was not cited.
The case arose in the context of a post-termination investigation as the decision maker was unaware that the complainant was homosexual at the time of termination.
The Tribunal looked at this issue from a different perspective. The failure to investigate, it reasoned, may contravene the Code when this conduct causes or contributes to discrimination. There may indeed follow a Code violation but not due solely to the fact that the investigation was inadequate. The actionable aspect must show a Code violation which was caused or exacerbated by the failure to investigate, it concluded. Accordingly there must be an underpinning of a substantive breach of the Code.
The authority for this proposition was found in the Divisional Court decision of Walton Enterprizes v Lombardi. There was no preliminary finding of liability for a failure to investigate in that instance.
The issue of whether there was an independent actionable obligation to conduct an investigation was not put squarely before the court. It arose obliquely, not directly.
The main issue in Lombardi was the evidentiary connection, if any, between the complainant’s depression and a physical altercation in which he was involved. It was in this context that the appellate decision considered the duty to investigate, not in the context of the review of such a finding. The Court did not affirmatively conclude that there could be no award made for a finding of failure to investigate, independent of a finding of liability on the substantive issue. The issue was not put squarely before it.
The Divisional Court did state, nonetheless, that there was no basis for a finding of a duty to investigate, absent a liability finding in the substantive complaint. At first level the adjudicator found a duty of the employer to investigate a possible connection between Lombardi’s depression and the harassment and fight.
In any event, the adjudicator failed to show the basis for finding a duty to investigate before dismissal absent first finding a prima facie case of discrimination arising from the dismissal.
This principle has been followed since the release of this decision.354
Even given this apparent new direction in the law, this does not diminish the need for a prompt and reasonable investigation. It remains a mainstay of the human rights process.
Other jurisdictions do not allow for such an independent award, although the need to conduct a proper investigation of the complaint is still evident and may lead to other consequences.
The Nova Scotia Board of Inquiry in Cromwell v Leon’s clearly concluded that the employer had an obligation to make an appropriate investigation and failed to do so. It, however, did not make an independent damage award due to this finding.
There are no cases offering an independent award for failure to investigate a complaint in other jurisdictions.
B.C. requires an employer to make meaningful investigation of an apparent human rights violation. In Bertrend v Golder Associates, the employer’s decision to terminate the probationary employment of the complainant was found to be a Code violation because it failed to take steps to investigate her behaviour which reflected an emotional issue and also had committed to do by its harassment policy. The tribunal concluded:
Ms. Bertrend’s depression does not insulate her from termination. However, once she disclosed her depression and raised an allegation of discriminatory conduct in the context of an employment offer, Golder had a responsibility to investigate Ms. Bertrend’s complaint. It had communicated that commitment to its employees under its harassment policy.
In addition, in British Columbia an immediate and effective investigation taken by the employer, followed by appropriate remedial steps may result in the dismissal of the complaint. This approach is designed to reward employers for acting decisively.
A good example of this conduct is the case of McLuckie v London Drugs. The complainant had alleged that a representative of the company made inappropriate comments about her sexual preference, made other alleged comments which she considered sexual and also inappropriately touched her.
The company investigated the complaint and ordered that the alleged offender be assigned into a different department to avoid direct contact. This action was found to be fair and the complaint was dismissed.
The Tribunal stated the reasons for dismissing the case for these reasons:
1. Where the employer has addressed the alleged unfair conduct, it may not further the purposes of the Code to continue;355
2. Such may result in a duplication of resources;356
3. The parties should be encouraged to show compliance with Code issues without the necessity of appearing before the Tribunal;
4. A settlement or other unilateral affirmative action to resolve the offensive behaviour will cause a hearing to be unnecessary.
Such reasoning makes perfect logic. It also emphasizes the impact of a fair and effective investigation. The employer is rewarded by acting fairly and quickly and in effect, implementing the Wall test. Such actions will very much assist all parties reach a prompt and effective resolution and avoid unnecessary proceedings.
In certain jurisdictions, such as B.C. and Nunavut, the statute allows for a cost order to deter improper conduct. Nunavut allows such an order to be made against a party which attempts to impede the investigatory process, which is also independent of the success of the party on the main issue.
Nunavut’s statute provides authority for such an award where the claim has been “knowingly false”, or if the investigation has been unduly hampered by the conduct of either party. This presumably does not require a liability finding on the substantive complaint. B.C.’s Act provides for a costs award where there has been “improper conduct”.
There is little doubt that arbitrators have the same authority to make awards of aggravated and/or punitive damages under a grievance procedure through a collective agreement. That being said, the general view of arbitral caselaw is that the granting of a reinstatement remedy “goes a long way to assuage any mental distress suffered by a grievor and reinstatement should be the primary redress for a discharged employee”. This suggests a higher standard for an award of aggravated damages, although generally speaking, this is not evident from the decided cases. The recent decision of Children’s Hospital of Eastern Ontario v The Ontario Federation of Health Care Workers LIUNA Local 1100 provides a good review.
Investigation May Allow for Vicarious Liability Defence
Ontario’s Code has a provision which deems the employer liable for the acts of its employees which may attract liability under the Code. This subsection, 46.3(1), does not, however, apply to complaints of sexual harassment.
Other jurisdictions, however, have allowed by statute for vicarious liability to hold the employer responsible, but have permitted a defence when the employer has shown due diligence, amongst other tests, in its investigation of the complaint.
Manitoba has enacted legislation which defines the concept of employer liability for the acts of its employees. Provided that the conduct was in the course of employment, the employer is deemed responsible.
However, the employer may show a defence by proving: (1) it did not consent to the conduct, (2) took all reasonable steps to prevent it, and (3) then took all reasonable steps to minimize or avoid the effect of the offensive actions.357 This is not limited to sexual harassment but rather applies to all Code violations.
The substance of this provision is repeated in the legislation of the Yukon.
Essentially, the federal legislation now allows for a “due diligence” defence to be raised against the assertion of vicarious liability for all claims made under the Canadian Human Rights Act, not just sexual harassment claims, as allowed by subsections 65(1) and (2).
New Brunswick has similar legislation358 with respect to a complaint of sexual harassment, which deems the actions of the employee to be those of the employer, but then allows the employer a defence of showing it used due diligence to prevent such conduct.
This defence is not available where the questioned conduct is that of an officer or director of the employer, which basically incorporates the “organic theory” of employer liability described below.
The employer must show that: (1) it did not consent to the questionable conduct, (2) it used all due diligence to prevent event; and (3) did all it could to minimize or avoid the adverse consequences.
This statutory provisions allowing for a full or partial defence to the employer to the vicarious liability assertion allow for a defence to be shown, in essence, in line with the Wall test, namely that it took proper preparatory steps by a written policy, followed it, investigated the complaint and took steps to resolve it.
An additional merit of an investigation may lay in the usefulness of the investigator’s report, as was seen in the recent HRTO decision of Newton v Toronto (Hart). The complaint was one of a sexually poisoned work force, which was, for the most part, upheld by the internal investigator. In this circumstance, the Tribunal proceeded directly to remedy.
This was an unusual case as the respondent admitted the accuracy of the findings of the investigator, which, although not unique, may be asterisked as one not to be expected in every instance. In this context the Tribunal simply chose to rely upon the investigative factual conclusions and proceeded to argument as to legal consequences of these findings.
Had such an admission not been made, the report could not be used to support factual findings in controversy.
This issue is viewed presently as a human rights complaint. It need not be so limited. The failure to investigate, particularly in the context of a person suffering serious physical or emotion abuse could readily cause an allegation of constructive dismissal359, both to support a lost income claim and aggravated damages. This may require consideration to be given as the correct forum in which to proceed, whether such be this process or a civil court. There are advantages and disadvantages to each. A review of recent common law decisions will show that aggravated damages and punitive damages have been leaps and bounds outside of the range anticipated in human rights cases. There, of course, can be no punitive damages awarded in the Ontario human rights process. In jurisdictions in which the human rights remedy allows for punitive damages, the sums awarded are capped or tend to be modest. In addition, there are no legal costs awarded, nor is there exposure to costs in this remedy.
The human rights process, however, allows for reinstatement and the potential of dramatic lost income awards360.
Whichever process may be pursued may be of less interest to the employer. The significant point to be made is that liability may be enormous and the need to do an effective investigation must be of paramount concern to the company to limit its exposure to such lawsuits, provide comfort to the employee who has complained and to his peers who are aware of the controversy.
Statutory mandate to investigate
The Occupational Health and Safety Act in Ontario361 makes it mandatory for the employer to maintain and implement a policy to ensure its workforce remains free from threats of workplace violence and harassment.The Act makes the investigation of such complaints compulsory. In addition, the policy developed by the company must state how the complaint is to be reported and in what manner the complaint is to be investigated.
The policy must include steps and procedures to permit employees to report workplace harassment. It must also explain the process in place by which the employer will investigate and deal with complaints.
Harassment is defined broadly and will include sexual harassment. The actual words used define workplace harassment as “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome”.
The law applies to all provincially regulated employers in the province. Where the number of employees is six or greater, the policies must be in writing and posted in the business premises.
If there was any doubt as to the necessity of the employer to create a sexual harassment policy, this legislation will quickly remove it. A complainant under the Human Rights Code may well argue that the failure to develop and implement such a policy will give rise to a section 5 violation in itself.
B.C. has a similar requirement under its “Workplace Conduct” Rules362 which mandates the report and investigation of “improper activity or behaviour”.363
The statute of the N.W.T. contains a similar requirement as that of Ontario to develop and anti-harassment policy and to investigate all complaints made under it.364
Saskatchewan has also in place such a similar legislative mandate365 dealing with harassment and workplace violence.
The Canada Labour Code366 contains a similar provision dealing with workplace violence.
P.E.I. mandates that each company issue a policy statement with respect to sexual harassment, in consultation with its employees, in essence describing the obligation to allow for a workplace free of such conduct and the avenue for redress. The legislation does not specifically mandate an investigation but that is the clear direction of the statute.367
Such is also the case with the Canada Labour Code, section 247.1.
A draft policy is attached which is compliant with all mandates set out above.
Public Interest Remedies
The purpose of such a remedy is designed to remedy any future wrongdoing and educate those persons involved, with the objective of eliminating the offensive behavior. Such an award should be intended to ensure the objectives of the code are met and to ensure future compliance368.The imposition of such a remedy is more likely where the offender has been seen not to take the apparent transgressions seriously369. Often an order is made requiring the posting of informative information setting out the mandate of human rights legislation or training to be undertaken by the company for its staff and management370.
The law is emphatically clear that for an administrative tribunal to award costs, the statute must employer it to do so.371 372
Quebec’s Charter allows for a costs award in favour of the Commission. Newfoundland’s statute allows for “costs as appropriate. B.C.’s act provides for a costs award where there has been “improper conduct”.
Yukon allows a costs order to be made as a general remedy provision if the complaint is upheld.
It also permits a costs award against the applicant where the complaint is found to be frivolous, as does the N.W.T. and Manitoba. Nunavut’s statute provides authority for such an award where the claim has been frivolous or “knowingly false”, or if the investigation has been unduly hampered by the conduct of either party.
Saskatchewan denies either party costs in any case taken to the Queen’s Bench at either level unless the review application is determined to be frivolous.
The Yukon is the only jurisdiction which allows the tribunal to make a damage award in favour of the respondent to compensate for damages to reputation against the complainant, should it be found that the complaint was frivolous or based on false information.
PJI is generally allowed on compensatory damages.373 374. It has occasionally been set to run from the date of the filing of the application.375 It would appear that the correct approach is to start the interest clock on the date on which the cause of action arose.376
It is routinely awarded on lost wage claims from the date on which the payment was due.377 To simplify the arithmetic, it may be adjusted from the mid-point.378
Appeals from Human Rights Tribunals
There are two issues to be considered with respect to any appeal or review of a human rights complaint. In most Canadian jurisdictions, the human rights process commences by the applicant making a complaint with the relevant commission, which then investigates and determines whether the case is one which should be referred to a hearing. Should the complaint then be dismissed, certain statutes then allow the complainant some form of review of this decision.379
Where no such statutory right of review is allowed, given that this is a statutory decision, there will be a right of judicial review in any event.
Where the case has proceeded to hearing, Canada, Ontario, B.C. and Manitoba allow for judicial review applications, which is a difficult task to accomplish when such a review has been made from a specialized tribunal. New Brunswick and P.E.I. allow for no review at all, which will mean a judicial review may be made. Nova Scotia allows for an appeal on only a question of law, Newfoundland on a question of law but also on a question of fact or mixed fact and law with leave. Alberta, Saskatchewan, Nunavut, N.W.T and the Yukon allow for an appeal without limitations. Quebec provides for an appeal to the Court of Appeal with leave of an appellate justice.
Reinstatement and Instatement
Reinstatement is obviously a very powerful remedy. Apart from the order itself, the request for the order will more readily support a lost income claim to the date of hearing and also, arguably, may be used to buttress a plea for a prospective income loss beyond the date of hearing when the reinstatement order has been denied.
The analysis which follows will show that reinstatement was considered “the prime remedy” for many years in Ontario. In recent years, the frequency of such orders has, for unknown reasons, become less evident. In the current context, the mantra has been cited to describe this remedy as one which has been “rarely requested or ordered”380, a description which is submitted is an unflattering and inaccurate assessment of this relief.
The recent decision of which allowed for such a remedy381, now confirmed by the Ontario Court of Appeal, may prove to be the bell weather.382
There can be doubt that the tribunal is empowered to order reinstatement383. It is a remedy which was considered appropriate by Wilson J. in her dissent in age discrimination case384 385.
There are a host of early cases awarding reinstatement in the early days of the interpretation of the prior human rights statutes386. Indeed, reinstatement was once stated to be the “primary remedy”387.
The initial order388 granted by the Board of Inquiry389 in December of 1996, is instructive of the issues to be considered by the decision maker in such a circumstance.
The Board noted that arbitral jurisprudence had determined that “so long as the employment relationship appears to be viable, reinstatement orders will issue” and further observed that the remedial powers found in the Code were similar to those given to labour arbitrators. In ordering reinstatement, the Board saw this remedy as the means by which the remedy of restitution may be attained:
It is also open to a board of inquiry to issue guidelines to accompany an order of reinstatement that will assist the parties in effecting a successful reconciliation. This appears to be precisely the sort of case which would benefit from this flexibility of approach. The evidence in this case suggests that an order for reinstatement may not result in a seamless re-entry into the automotive plant for Mr. Naraine. To attempt to maximize the prospects for success, movement is required from both sides to this dispute390.
The modern administrative decisions are bereft of any acknowledgement of the jurisprudence set out above. The cited decisions have not been referenced, either in support of, opposed to, accepted, rejected or distinguished in the recent analyses pondering the award of reinstatement.
The words of then Professor Cummings391 which described as the order of reinstatement as the “prime remedy” have somehow, for unknown reasons, fallen to wayside. That which was first set out so fundamentally as the default remedy, admittedly strong words, has been recently characterized as “rarely requested or ordered”, words which, it is submitted, are not fairly descriptive of the remedy, even in the current context.
Although this remedy has certainly not been considered recently as the “primary” remedy, it has nonetheless be granted on numerous occasions since 2000.
An unusual limited instatement order to a position of a more junior responsibility was made to counter the apparent damage the applicant had suffered to his reputation. In this instance it had been found that the termination of employment had not been caused by a code violation392. It was determined that the ability of the complainant to find alternate employment in his vocation had been adversely effected by his treatment while employed by the respondent.
Reinstatement has been found to be the correct method of restoring the status quo393 in many cases394, reflecting the principles as set by the Court of Appeal. It is a firm precept of human rights legislation that the objective of the remedy is “to put the applicant in the position that he or she would have been in had the discrimination not taken place”395 396.
There may be qualifiers to the reinstatement remedy, such as “where viable”397, or that even where so possible, reinstatement is “sometimes”398 the only remedy which may allow for the establishment of this “make whole” principle.
In arbitral cases, reinstatement is generally considered the default remedy to counter a termination unless there are legitimate concerns that “the employment relationship is no longer viable”399.
The size of the company’s workforce has, one occasion, been ignored400 and on occasions referenced as an issue in favour of reinstatement401, and in one case the brief employment history was seen as uninfluential.
A contrary view has been expressed, suggesting that reinstatement should be confined to an environment of a large unionized employer402, or that the worker was unskilled403, or that such a remedy is not appropriate in human rights cases where liability is based on an influential factor as opposed to the sole factor404.
It is difficult to imagine a remedy which is shaped by the reasoning by which liability was determined, apart from a concept which parallels contributory negligence.
This being stated, it is noted that similar reasoning was used, coupled with other reasons, in denying reinstatement405.
The argument against reinstatement would be more logically supported if the extraneous factors may have been proven to have militated against a continuation of the employment relationship. For example, if the complainant was terminated due to a physical disability, yet also exhibited legitimate performance issues, then it is conceivable a submission could be made that the application of the but-for test would have concluded that the relationship was otherwise doomed to fail, as opposed to the theory that if the Code was but a proximate cause, therefore, the remedy should not follow as a determined rule.
Notwithstanding all of the above, the decision of Fair v Hamilton-Wentworth District School Board406, (Joachim), released on March 14, 2013 ordered reinstatement. The Tribunal had found that the employer had treated the applicant unfairly due to a disability by failing to accommodate her disability-related needs from April 2003 and then by terminating her employment on July 9, 2004.
The Tribunal also made reference to the remedy of reinstatement in an arbitral context to the effect that reinstatement is the default remedy in this context.
It was also noted that there was no personal animosity between the parties and that the employer was a large entity with a sophisticated management structure. All factors considered, there was no prejudice caused by the reinstatement request.
The argument advanced by the employer that reinstatement would be unfair due to the passing of 8.5 years from termination to the date of the remedy was not successful. The delay was determined not to be to any failing of the applicant.
There may be some issue taken to the human rights tribunal relying upon arbitral authority as a means to support the reinstatement order. There is nothing noteworthy about this as many fundamental concepts in human rights principles have found their origin in arbitral decisions. This includes the need to establish but a prima facie case and the concept of liability be shown by a cause, not the sole cause. Similarly the process of evidence by reasonable inference found its initial reasoning from arbitral jurisprudence.
This case has now been upheld by the Court of Appeal.
One might expect that the employer would raise a submission that the employment relationship may be one which is difficult to resurrect as a consequence of a hearing involving evidence and issues which are likely to be emotionally charged and arguably destructive of inherent good will required for a continued life between the parties.
The views of the Federal Court, discussed below, may be an apt rebuttal consideration for such an argument. It was concluded in that instance that this submission must be tempered by the fact that it was the wrongful conduct of the employer which led to the need for the litigation407.
Many of the early decisions deal with the issue of the impact of a reinstatement order upon innocent third parties.
In a unionized work environment, there will exist rights of the party effected pursuant to the terms of the collective agreement and hence the impact of such an order upon such a person will be cushioned by the protective terms of the agreement.
Professor Cumming made note of such provisions in Rand v Sealy referenced above, when he ordered that the complainant be reinstated. A similar reference was made by the same decision maker in Singh v Security and Investigation noting that no present employee would be adversely effected by the order that an offer of employment be extended.
The impact of the reinstatement remedy on innocent third parties has also been viewed as a critical factor in declining reinstatement408.
Other Canadian Jurisdictions
Reinstatement is a common concept in other Canadian jurisdictions. The wording of the legislation varies but it typically provides authority to the human rights tribunal to take such action to remedy the wrong doing or alternatively specifically empowers reinstatement.
The interpretation of this provision allows the Tribunal to consider in its discretion whether reinstatement is viable in the context of the facts before it.
It is not a default remedy as may expected in arbitral jurisprudence, apart from two cases under the federal court referenced below which spoke of the “duty” to attempt to reinstate, a decision which has not been referenced as authority for this concept subsequently.
The comparison is also offered to put the Ontario remedy in some degree of perspective. Reinstatement is viewed as a discretionary remedy and has been ordered when considered appropriate with due regard to all factors in play in the remaining common law jurisdictions.
The complainant appears to have the onus although this is not specifically defined in the case law, although given that remedy is discretionary, this is a fair presumption. The cases are all very much fact driven, but typically the decision maker seeks to determine if the remedy is viable by assessing if the work environment has fallen into an unworkable circumstance by the degree of angst between
the parties. Also there usually there follows an examination of the relative prejudice caused to either party by such an order.
Apart from the factual underpinning, the really only contentious issue is whether there should be some consideration given to why any apparent animosity between the parties has come to exist.
One case does speak to this issue where such ill will is caused by the litigation, in that it is the conduct of the wrongdoer which brought about the adversity and hence should be of no moment to the requested relief. This will be particularly so in a case involving allegations of sexual harassment. This does make logical sense. It would appear unfair to deny such a remedy when the source of a personality conflict emanated from the very wrongdoing which the remedy seeks to redress.
Reinstatement is not considered an unusual remedy under the Canadian Human Rights Act. Many decisions have routinely ordered this relief as the means by which the complainant has been restored to the former position.409 In one decision410, a case of sexual harassment, the panel noted that reinstatement was unworkable due to apparent bitterness between the parties, at least in the position sought, a conclusion which did not deny the complainant from reinstatement yet to an alternate position. The applicant successfully reviewed this decision411. She was reinstated. The Federal court noted that it was employee who was the innocent party and hence could not be held accountable for the “bitterness” and the “recipe for disaster” noted by the panel.
The tribunal has also spoke to the “duty”412 to attempt to restore complainant to “the position she would have been in, but for”, in a complaint based on race and colour.
The passing of time seems to be of no moment. An order of reinstatement has been made 13 years after the termination413. In the same case, the applicant was instated to a higher level position that that which he held previously414, based on his argument should would have unfolded in the natural progression. The issue of the inconsequential effect of the passing of time is not a universal truth. In one case it was determining that the lengthy passing of time would place the applicant in a position superior to current employees then laid off.415
This position is in conflict with the basic objective of restoration of the status quo. The decision should reflect that which would have followed. Had the complainant likely been laid off in any event of the wrongdoing, then the remedy should reflect this.
In B.C, generally the test of reinstatement is one to determine if the relationship is one which remains viable416.
In Alberta, the remedy certainly is also not reflexive417, but as in the case of British Columbia cases, has been exercised as a matter of contextual discretion. The factors considered will include the degree of any ill will from one party to the other, whether the relationship remained viable even through the litigation process, the degree of prejudice to be caused by the requested order and in this case, the apparent benefit to the complainant, given that she remained unemployed418.
One case weighed the significance of the impact of such an order upon the applicant’s life419.
Saskatchewan again applies the same principles420 and in so doing, also considered the application of the “but-for” test421. In a case involving a disability of cerebral palsy. The tribunal determined that were it not for the adverse treatment, the employee would have completed his casual employee status and have been transferred to permanent status, as was ordered.
A New Brunswick panel applied the same test as whether the relationship was viable the absence of any chasm between the parties on a personal level422, which presumably would have been a factor in assessing the propriety of reinstatement.423
The Tribunal noted in that the “usual remedy” is to allow reinstatement when a violation of the statute has been found424.
The general view again is that the remedy must be viable. The evidence of the complainant to the effect that he doubted reinstatement would be a positive experience for him was considered a negative factor to deny the award425.
One factor in allowing reinstatement in an age discrimination case was that the complainants were all over the age of 65 and otherwise would have suffered economic hardship in finding employment426.
An order of reinstatement can be made even where the applicant does not return to active employment427. This can have tremendous significance as noted below.
The remedy under the Canada Labour Code has been interpreted on a similar basis, namely that while the intent is to apply a “make whole” philosophy, reinstatement is a discretionary remedy.428 In this instance the first level decision maker had denied reinstatement due to the dishonesty of the complainant in not reporting post-termination income during the period she had asserted that she was disabled and unable to work, which was first revealed in her cross-examination during the hearing.
This decision reversed on this issue on first instance in review by the Federal Court. The Federal Court of Appeal set aside the decision of the motions judge and ordered that the decision of the adjudicator stand. The remedy of reinstatement was one which within the discretion of the adjudicator. The issue of trust was fundamental to the existence of a continued employment relationship.
Reinstatement to Inactive Employment
Few cases consider the proposition that one possibly contemplated event may be the continuation of the employment relationship without active day to day employment. There may be a reason why the employee cannot take on active employment, such as a present disability suffered by a woman who has been harassed.
Many pension plans allow for pension credits to the employee while on disability, and also other employment medical and similar benefits. It may also be important for seniority purposes or vacation entitlements which may be based on length of service. Another reason is the need for “employment” for a later recurrent disability.
This may raise also the issue of a reinstatement remedy without the necessity of active employment, but rather simply to order that the employment relationship remains intact for purposes of such benefits. A foundation in the form of an employer policy document or a pension plan with such terms would likely be required to support such an argument.
In one human rights case, the complainant, due to a vision disability, was unable to work and had been absent from active employment from April 2007 until his eventual dismissal in September of 2011. It was accepted that his medical impairment was permanent and he would be unlikely to return to active work. He continued to receive LTD benefits.429
The employer also continued to provide MSP and extended health care premiums. The employer alleged that it offered to maintain his employment status until his 65th birthdate to maintain his group disability benefits, if the complainant paid the premiums, an offer which was declined and on which the evidence was disputed.
The complainant argued that it was not a BFOR that he report for active employment.
The claim was based on two arguments, the first being based on the threat of the termination of the MSP and health premiums, which was later rescinded and secondly, based on the termination of his employment.
The first argument was not effective, as the employer had withdrawn its threat and had continued the benefits.
As to the second submission, an issue arose as to whether continued active employment was a pre-condition to the entitlement to continued disability payments. The determination of the argument was delayed pending the response from the employer to this issue, one which ultimately had shown that continued active employment was not such a prerequisite to continued disability benefits. The motion was successful and the claim was dismissed.
It is clear, however, that the tribunal was prepared to consider argument on the issue of reinstatement to non-active employment if this was factually required to allow for disability coverage.
The tribunal did, however, to the point at issue, note that certain disability plans require employment status and observed arbitral authority for the conclusion that active employment, in such a circumstance, would not be required for reinstatement.
One such arbitral decision as referenced in the human rights case430 stood for this very proposition, namely, that reinstatement to inactive employment is a proper remedy and that active employment is not a pre-condition to such relief.
In a second human rights case,431 the employer had closed its mill operation in Squamish with no likely possibility of re-opening it. It was not initially providing employment or compensation, including health and welfare benefits to any of the Squamish crew at the date of termination. For this reason, it was argued that MacRae was treated in the same manner as his colleagues.
The applicant had been terminated for non-culpable absenteeism due to a serious medical issue eleven days before an agreement was reached with the union that allowed employees on lay-off entitlement to a substantial severance payment.
It was determined, by the tribunal, however, that where a plant shutdown was in the offing, that the ability to perform work was not a BFOR and that the complainant’s employment was terminated to prevent him from receiving severance pay and was hence a violation of the Code.
The Tribunal concluded that such a decision to terminate had the direct impact of causing the loss of such a right of severance pay and hence was a basis to show an “extraneous motive” which thus may establish a prohibited adverse discriminatory intent.
If such a decision was motivated by an intent to deprive disabled persons a severance payment that was available to all other employees, such would lead to a finding of discrimination.
The British Columbia Court of Appeal432 in the concurring reasons of Mr. Justice Groberman specifically stated that he was not endorsing the decision in MacRae. The reasons of the Chief Justice did not speak to this issue.
Groberman J.A. did agree that it was arguable in this situation of a shutdown, that the employee need not have the capacity to work. This issue remained undecided, was the stated view.
Such an order was made in the decision of the Yukon Human Rights Board of Adjudication433 which found liability against the respondent due to its adverse treatment of the applicant who suffered from a debilitating liver disease. An order of reinstatement was made even when the applicant was unable to return to active employment.
A recent arbitral decision434 provides an excellent review of arbitral case law on this subject.
On the facts of this case, the employer terminated 29 employees, all of whom were on LTD benefits which resulted in five individual rights grievances and a policy grievance.
All employees were given notice as required by the ESA and paid the statutory severance sums. Apart from LTD benefits, which were not adversely effected, all other benefits terminated at the end of the ESA notice period.
One argument put forward by the union was that the interpretation of the collective agreement allowed for continuation of benefits during the period of the disability and hence the termination denied such benefits such as group life, accidental death and dismemberment and the prescription drug plan. Reinstatement should hence follow to allow for the continuation of such benefits became the submission.
The essential issue to be determined was whether the collective agreement contemplated the continuation of benefits beyond the basic LTD and hence precluded the company from termination due to innocent absenteeism.
To this end, arbitrator Marcotte examined many precedent cases which were factually driven and dependent on the interpretation made of the particular collective agreement in each instance.
One such decision435 concluded that the existence of a disability plan under a collective agreement may limit the right of the employer to terminate a disabled employee, where the consequence of such action would be the loss of long-term disability or other benefits.
Returning to the decision of Arbitrator Marcotte, he concluded that the terms of the the collective agreement may limit the right of the employer to terminate for innocent absenteeism.
The distinction was noted between benefits which arise directly from the illness or injury and those which are tied simply to employment. To argue that termination is not allowed due to a loss of benefits, such claim for benefits must be related to the former.
Arbitrator Marcotte summarized the arbitral jurisprudence as allowing for termination of the disabled employee provided that that the termination of employment does not interfere with the employee’s continued entitlement to LTD benefits or other benefits as allowed by the agreement, such as extended health care or dental plans.
Essentially, this involves a review of the collective agreement to determine if additional benefits were intended to be provided to the disabled employee during the period of LTD eligibility, which, in this instance, were found to be lacking and hence the termination decision was upheld.
The Ontario Superior Court in the 2007 decision of Mr. Justice Perell of Dragone v Riva Plumbing considered the motion made by the plaintiff for declaratory relief that the employment relationship remained intact to allow the plaintiff to claim coverage under medical, drug and dental insurance plans.
A dispute had arisen between the parties as to whether the employment relationship had ended due to the plaintiff`s resignation and hence the case is not demonstrative of a declaration to reinstate the plaintiff back to employment following a direct termination.
On this issue, the court found that the evidence demonstrated that there was no evidence of a clear and unequivocal intention to resign communicated by the plaintiff.
The plaintiff was not in active employment and in receipt of long term disability benefits when the application was made 14 months after her last active day of employment.
A declaration that the plaintiff remained employed was granted, in addition to an order that the employer continue to maintain medical, dental and drug insurance plans.
The Court also stated, albeit obiter, and without a definitive conclusion, that once the employer was made aware of the plaintiff`s medical disability of metastasized breast cancer, which preceded the evidentiary dispute surrounding her alleged resignation, any attempt made by it to amend the benefits coverage would have arguably been contrary to the Human Rights Code.
There is much logic in this view. There is every likelihood that a civil court would grant a similar order at the very least for the period of reasonable notice and where the evidence will support a connection of such benefits to long term disability insurance, for the period of disability.