Arbitrators and Human Rights Tribunals Taking Their Lead From Courts?
There used to be a debate about levels of damages in human rights cases. Often the unsuccessful party would challenge the decision in court in the hopes that damages awards would be reduced.
Parties are going to have to rethink that strategy in light of the ruling of the Ontario Court of Appeal in Strudwick v. Applied Consumer and Clinical Evaluations.
The decision was handed down on June 30th, 2016. Ms. Strudwick, an employee of Applied Consumer and Clinical Evaluations, became suddenly and completely deaf. The Court reviewed the facts and found that managers at the company started a campaign of abuse against Ms. Strudwick, designed to force her resignation. In addition to publicly belittling, harassing and isolating Ms. Strudwick in ways relating to her disability, the Court said that Applied Consumer not only denied Ms. Strudwick any accommodation of her disability, but also took specific steps to increase the difficulties she faced as a result of not being able to hear. The culmination of this abuse came on May 27, 2011 when Mr. Hoffman fired Ms. Strudwick for a “stunt [she] had [allegedly] pulled” at a company event.
She sued Applied Consumer for wrongful dismissal and for damages as a result of the abuse. When the employer did not contest its liability, a judge assessed damages of $113,782.79, including pre-judgment interest, plus $40,000 in costs.
Ms. Strudwick appealed the damages award, particularly the part under section 46.1 of the Ontario Human Rights Code, which gives the Court the same power as a human rights tribunal to compensate for injury to dignity, feelings and self-respect.
The Court reviewed the standards when awarding damages for breaches of the Human Rights Code. It said the considerations that should be reviewed include:
- The immediate impact of the discrimination and/or harassment on the complainant’s emotional and/or physical health
- The ongoing impact
- The complainant’s vulnerability
- Objections to the offensive conduct
- The respondent’s knowledge that the conduct was not only unwelcome but viewed as harassment or discrimination
- The degree of anxiety the conduct caused
- The frequency and intensity of the conduct.
The Court of Appeal said the original decision was too low. It accepted the conclusion that the conduct was unconscionable. The Court reviewed the claims for code violations, mental distress, and aggravated and punitive damages, and increased the award from $113,782.79 to $246,049.92.
The fact that the Court of Appeal more than doubled the original damages award is a clear signal that, in assessing particularly objectionable conduct that has caused significant health consequences, appeal courts will not be reluctant to increase damages awards in appropriate cases. The Court even said it felt constrained by the total amount claimed by the employee. We are left to guess what the amount might have been if more had been asked for.
The old assumption that an unsuccessful employer can take a human rights case to court and expect damages to be reduced is clearly no longer a safe assumption, if it ever was. Arbitrators, and even some human rights tribunals, may be looking to the courts for guidance on just how high damage levels can go in an appropriate case.