Volume 2, Issue 1 May  2003

This Email Newsletter contains just a few of the many new cases and findings detailed for the Canadian law community in David Harris's Canadian Cases On Employment Law Quarterly, available for purchase online from Carswell.

 

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Ontario's Human Rights Commission - Fast as a Snail Use of the Civil Courts to Enforce Human Rights Violations Developments since Bhadauria vs Seneca Playing Two Tables At A Time A Choice for The Ontario Government

Ontario's Human Rights Commission - Fast as a Snail

The prospect of the Ontario government prohibiting mandatory retirement at age 65 will once again raise the need to review the process of the Ontario Human Rights Commission, the body given the legislative power to implement the remedies under the Human Rights Code.

The reality is that the process of filing a complaint under the Code is a long and arduous one, with not much punch at the end of the road.

Although the Code does empower an order of reinstatement, lost financial compensation and an order for emotional suffering, the remedies typically made very rarely allow for reinstatement. The awards made for emotional suffering are capped at $10,000 by statute.

Cases that went to hearing in 2002 were commenced many years prior - the average life span was 5 to 6 years; not quite an immediate result, as the below selected examples show:

Use of the Civil Courts to Enforce Human Rights Violations

Some 20 years ago in 1981, the Supreme Court of Canada had determined that there was no civil claim possible where the plaintiff had argued a breach of the Human Rights Code as giving rise to a civil cause of action.

That case involved a plaintiff, Ms. Bhadauria, who had sued Seneca College alleging that the college had denied her employment due to her race. The Ontario Court of Appeal in a 3-0 decision had found in favour of the theory of the claim. The Supreme Court thought otherwise and rejected the argument. (Ironically the justice who wrote the decision of the Court of Appeal, Justice Bertha Wilson, later became a Supreme Court judge.) The Ontario government following Bhadauria amended the legislation, ostensibly to reverse the impact of this decision.

Recently, several decisions of the Ontario courts and the Supreme Court have made impact of the Bhaduaria history.

Developments since Bhadauria...

In 1996 the Ontario Court of Appeal found in L'Attiboudeaire v Royal Bank that the allegation made (that the Bank was racist, dehumanizing, derogatory and sexist) was conduct which was evidence of constructive dismissal, and hence was permitted to be argued in the case. The Court also concluded that the terms of the Canadian Human Rights Act could be considered in assessing the conduct of the Bank.

To succeed in suing civilly by reference to the Human Rights Statute, the plaintiff should not argue that the violation of the statute, in itself actionable in the civil court, but rather that the conduct in offending the code, also:

1. Supports a civil claim such as constructive dismissal; or

2. Supports an argument that the employer's unfair action should increase the normal common law notice period; or

3. Supports a claim for punitive damages.

The Supreme Court in McKinley vs. BC Tel stated that an argument alleging a breach of Human Rights Legislation can give rise to an award of punitive damages, even though no such award was made in that case.

It is to be noted that, although in very severe fact circumstance, the Supreme Court restored a jury award of $1 million for punitive damages in Whiten v Pilot Insurance. Not every case obviously will lead to the same result, but nonetheless a jury's verdict on this issue will likely not be readily altered by future appellate courts, where a proper factual background has been presented. 

It is quite possible to predict a substantial jury award for punitive damages where an employer has deliberately violated an individual's statutory rights. Unlike the process through the Human Rights Commission, there is no cap on such damage awards, or for that matter on any damage awards.

Also, several trial decisions have allowed for an increase in the "normal common law notice claim where there has been a finding of unfair action which led to the termination, such as a breach of the Human Rights Code."

The case of Skopitz v Intercorp Foods allowed an extension of the common law notice, consistent with the Supreme Court of Canada decision in Wallace, based on a finding that the employer had violated the Human Rights Code by not accommodating the plaintiff's medical disability.

The same reasoning was used in Galbraith v Acres, in which the plaintiff proved that his age was a factor in the decision made to demote him, and hence the contravention of the Human Rights Code again allowed for an incremental damage award beyond the traditional common law notice.

Playing Two Tables At A Time

It is feasible that a plaintiff may use both the civil claim and the human rights process in tandem. This may be useful as there have been tax cases holding that the payment of damages to settle a human rights complaint is non taxable whereas the severance sum is fully taxed.

Also, civil actions using traditional tort claims have succeeded in suing for what is essence were sexual harassment complaints. Alice Clark successfully sued the Government of Canada ( Clark v R. In right of Canada 3 CCEL (2d) 171 due to harassment from male RCMP officers for intentional infliction of mental suffering and also arguing negligence, asserting that the employer did not put an end to this known conduct. She recovered $5,000 for paid and suffering and $88,000 for lost earnings caused by this wrongdoing.

Similarly Lorraine Boothman sued her employer, also the Federal Government ( Boothman v. Her Majesty the Queen [1993] FCJ 381 asserting successfully that she had been assaulted and verbally abused by her supervisor, one Thomas Stalinksi, while in the employ of Canada Oil and Gas Lands Administration. This case was not a sexual harassment case but rather one of emotional abuse. She recovered $10,000 for pain and suffering, $20,000 for loss of future earnings and $10,000 for punitive damages.

The use of the civil courts makes logical sense for many reasons, most significantly that the civil trial process is faster, and also creates one forum to debate all issues leading to termination decisions. It makes no sense to wait until the completion of the human rights process to determine the propriety of a civil action, particularly given the new 2 year limitation period to be in effect in Ontario as of January 1, 1994, not to mention the need for economic survival.

A Choice For The Ontario Government...

The reality is that the Human Rights Commission is under funded. It is a slow bureaucratic process. In one case in which this writer was involved the preliminary fact finding to be done by the Commission before the need for a hearing can be determined, was still not finished after 3.5 years. In frustration, a civil claim was issued which caused the case to settle within 6 months.

If the Ontario government wishes to do something about mandatory retirement, it should consider a complete overhaul of the Commission. It should ensure that it receives proper funding to do the job for which it was intended, or scrap it altogether. In the meantime, individuals seeking recourse will be wise to consider the civil courts.

(C) 2003 David Harris LL.B. Barrister & Solicitor

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