Appendix 1 – SAMPLE FACTA
The facta below are offered for general guidance and are not intended for use in court or administrative hearings without legal advice.
SAMPLE FACTUM 1 – PROVING THE CASE LIABILITY
1. Given the broad policy considerations behind the human rights legislation, the statute should be interpreted in a manner “befitting the special nature of the legislation, which as described in, is “not quite constitutional”. The human rights legislation hence must be given “such fair, large and liberal interpretation as will best ensure the attainment of their objects”.773 The burden of proof rests on the complainant to establish a prima facie case of adverse discrimination.774
2. A prima facie case is “one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent-employer”.775
3. Once this test of a prima facie case is made, the burden of proof then shifts to the employer to provide a reasonable explanation for the behaviour.776 The three elements of a prima facie case require the complainant to prove that he or she is a member of a group protected by the Code, that he or she was subjected to adverse treatment and that the subject matter of the complaint as alleged was a factor in the alleged adverse treatment.777 A complainant is not required to establish that the respondent’s actions lead to no other conclusion but that discrimination was the basis for the decision at issue in a given case.778
4. There is no requirement that the respondent’s conduct, to be found discriminatory, must be consistent with the allegation of discrimination and inconsistent with any other rational explanation.779
5. The ultimate issue is whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent.780
6. In discrimination cases, the law, while maintaining the burden of proof on the applicant, provides respondents with good reason to call evidence. Relatively “little affirmative evidence” is required before the inference of discrimination is permitted. The standard of proof requires only that the inference be more probable than not. Once there is evidence to support a prima facie case, the respondent faces the tactical choice: explain or risk losing.781 In a case in which the respondent’s answer relies on a statutory defence, the burden of proof shifts to the respondent, following the presentation of a successful prima facie case by the complainant.782 In a case in which the respondent’s answer is to lead further evidence to rebut the inference that its action was discriminatory, only the evidential burden shifts.783 The onus of proof upon the complainant is that of a balance of probabilities, as in a civil case. The applicant must show that he/she experienced within the meaning of the Code the discrimination, harassment and/ or sexual reprisal she alleges.784
7. Direct evidence of conduct contrary to the Code’s mandate is rare. The Tribunal typically makes its findings by reasonable inference from the evidence before it.785 It has been noted that since direct evidence is rarely available to a complainant, it is left to the Board to determine whether or not the complainant has been able to prove that the employer’s explanation is pretextual by inference from what is, in most cases, circumstantial evidence.786 It becomes necessary for the Board to infer discrimination from the conduct of the individual or individuals whose conduct is at issue. This is not always an easy task to carry out. The conduct alleged to be discriminatory must be carefully analyzed and scrutinized in the context of the situation in which it arises.787 The offensive conduct need only be a factor propelling the conduct in question. It need not be the sole cause.788 It is not necessary to prove an intent to discriminate.789
SAMPLE FACTUM 2 – SPECIAL DAMAGES – LOST INCOME
1. Under human rights legislation, the purpose of compensation is defined by the make whole concept.790 In the Piazza decision referenced above, the Court of Appeal upheld the Board’s award of 11 weeks’ lost income after 10 weeks of employment and stated that the purpose of compensation is to restore the complainant to the prior position that they “would have been in had the discriminatory [conduct] not occurred”.
2. As the remedy under the Code is restitutional in nature, the length of employment and the “quality” of employment are both irrelevant factors in the determination of the income loss.791
3. In Impact Interiors, one of the two complainants had been employed for two days, at which time she quit due to the sexual harassing conduct of the employer. The Board of Inquiry ordered a lost wage claim of $17,000, which represented the difference between what she would have earned in her former job and what she actually earned over the period from the date of last active employment to the date of hearing, which was 2 years and 18 weeks in duration. It is clear that the wrongful dismissal implied term of reasonable notice is not the basis of determining the income loss in a human rights complaint.792 “The purpose of the compensation [in human rights] is to restore a complainant as far as is reasonably possible to the position that the complainant would have been in had the discriminatory act not occurred. I find nothing in the language of the foregoing section which would import into it the limit on compensation which is imposed by the common law with respect to claims for wrongful dismissal.”793
4. Foreseeability is not the test for the determination of lost income under the statute where the statute allows for a lost income claim.794 To establish a claim, there must be a causal link between the loss of income and the conduct in question. The test to be used for that purpose is the “but-for” test requiring “a causal link”.795
5. These cases conclude that the lost income claim is based on the test set out above, namely, but for the employer’s adverse conduct, what income would have otherwise been earned? Such a test would look to the adverse conduct and determine if the loss of income is caused by such conduct. A termination, direct or constructive, caused by discriminatory conduct, would hence fit this test.796
6. Hence, an applicant who proves a breach of the human rights statute is entitled to compensation for wage loss arising out of the discriminatory act. The income loss is commonly considered to commence from the date of the infringement to the date of the hearing.797
7. The tribunal does have discretion to limit the loss of income claim, apart from applying the concept of mitigation as discussed below, by the application of such discretion “on a principled basis”.798
8. The tribunal has the jurisdiction to make an award for a future loss. The plea of reinstatement, while preferable, is not mandatory to allow for a prospective income loss beyond the date of hearing.799
9. Examples of such a prospective income loss are below.800The Ontario tribunal has recently stated that such an order for future loss would be made in only an unusual context.801
10. The above statement is not accurate, given the above precedent decisions. The Divisional Court has upheld an award for future loss in lieu of reinstatement in arbitral jurisprudence in circumstances where the arbitrator had determined reinstatement was not a workable order.802 A similar conclusion was reached interpreting a parallel legislated remedy.803 The adjudicator determined that reinstatement was not an appropriate remedy and hence awarded compensation through to the applicant’s retirement age, albeit, on terms requiring a report on his mitigation efforts during the prospective period from the date of the award of May 2, 2002 through to the date of retirement of July 22, 2003.
11. As a general rule, it would appear that the complainant remains under an obligation to take reasonable steps to seek out comparable employment, as is the case in common law wrongful dismissal actions.804
12. There are some inroads suggested in this principle as discussed below which reflect the considerable discretion given to the tribunal and that the human rights process is not required to march lock step with common law principles.
13. The onus is upon the employer to prove a failure to mitigate.805 The tribunal, may in the exercise of its discretion, apply the common law concepts of mitigation, but it is not mandated to do so.806 Mitigation expenses have been allowed where it has been determined that the expense was reasonably incurred.
14. A successful claim for travel costs has been allowed, to compensate for additional travel costs incurred in her new position of employment for the time period of October 1, 2009, her last active date of employment, through to July 2010.807
15. Job search expenses have also been allowed,808 as have moving expenses.809
SAMPLE FACTUM 3 REINSTATEMENT
1. Under human rights legislation, the purpose of the remedy under the Code is defined by the make whole concept.810 The same principle applies to invoke the reinstatement remedy.It is clear that all human rights tribunals each have the discretionary power to order reinstatement.811 Wilson J. voiced a strong view in support of reinstatement as a remedy in an age discrimination case, noting the specific factors of the age of the plaintiffs, the particular prejudice suffered by them and the need to redress the wrong.812
2. Early Ontario cases routinely ordered reinstatement as the appropriate remedy, even stating it was to be considered the “prime remedy”.813
3. The test essentially has been to determine if the employment relationship remains “viable”.814 815
Modern Ontario Cases816
4. A limited form of reinstatement was ordered based on the finding that the complainant suffered damage to his reputation due to the adverse treatment.817 The termination of his employment was found not to have been caused by unfair discriminatory conduct.
5. Similar orders have been made of instatement818 and reinstatement.819 The tribunal did observe that awards of reinstatement historically were “rarely requested or ordered”820. Reinstatement may be the appropriate remedy nonetheless to remedy the wrong.
6. The Tribunal again ordered reinstatement due to a disability by failing to accommodate her disability-related needs from April 2003 and then by terminating her employment on July 9, 2004.821
7. Reinstatement has been ordered in many provincial and the federal jurisdictions, applying the concept that it is not a default remedy, but is one to be considered in view of the context of the relationship. In essence, these cases examine the comparative prejudice to be suffered by the parties due to the order of reinstatement.822 823 824 825 826 827 828 829 Reinstatement to inactive employment is an important remedy when benefit coverage requires a continuation of employment status. This has been considered by not applied in a human rights context.830
8. One case to date has ordered reinstatement to inactive employment.831
9. Arbitral jurisprudence will allow reinstatement to inactive employment in the context of the collective agreement.832
SAMPLE FACTUM 4 COMPENSATION FOR INJURED FEELINGS
1. There is a presumption in favour of making an award of general and special damages in a human rights claim.833 The breach of the Code itself will give rise to a claim for compensation. A damage award will be made for the compensation for the “loss of the right to be free from discrimination and the experience of victimization”.834 Factors to be considered in the damage assessment include the humiliation,hurt feelings, loss of self-respect, loss of dignity, loss of self- esteem, loss of confidence, the experience of victimization, the vulnerability of the complainant, the seriousness, frequency and duration of the offensive treatment.835 The gravity of the wrongdoing conduct will impact the damage award. Dismissal from employment will have an impact on dignity which is more emphatic on a one-off comment.The more prolonged, hurtful and harassing the behaviour, the greater is the injury to dignity.836
2. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious.837 Damages in a sexual harassment claim specifically have been influenced by (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.838 Awards in sexual harassment cases tend to be higher than in most human rights violations due to the inherent vulnerability of the victims and the likely more severe personal trauma inflicted by the wrongdoers.839
3. The range of expected awards may be referenced in the narrative above.
4. It may be noted that certain jurisdictions to allow for punitive damages840 which have been frequently awarded in cases of sexual harassment.
SAMPLE FACTUM 5 GENERAL REPRISAL
1. The purpose of this remedy is to allow complainants to be able to enforce their rights without the fear of repercussion.
2. A complainant for a reprisal remedy stands alone. Success in the substantive complaint is not required. The applicant must only show that rights were claimed or threatened to be claimed under the Code and he/she was the subject of adverse treatment or the threat of as a result.841 The applicant must prove intent that the action or threat was intended as retaliation to the claim to or enforcement of a right under the statute.
3. To constitute reprisal, it is sufficient if the conduct is “at least in part” due to the complaint or threatened complaint.842
4. Proof of such intent may be inferred from circumstantial evidence, but there must be evidence to support the proposition that the decision maker was aware of the steps being taken to enforce Code rights.843 The complainant must show that he or she holds a genuine belief in the merits of the claim which is asserted.844
5. Compensatory awards follow the same principles as any such award for a human rights violation. If the applicant was terminated, such would follow as a factor.845
6. A reprisal claim may lead to a lost income award. There is no necessity to prove that the substantive claim succeed on its merits.846 The employer is deemed to be vicariously liable for a reprisal claim.847
7. Given that the reprisal conduct must be intentional to succeed, consideration should be given to a punitive damage request in the jurisdictions are noted above which allow it.