While the Human Rights Code (the “Code”) permits courts to award damages for violations of the Code – as opposed to limiting the jurisdiction to do so to the Ontario Human Rights Tribunal – we have yet to see the proliferation of civil decisions ordering such damages.
While there may be many different reasons for this (not the least of which being the generally slow nature of the litigation process), one thing is certain: where the necessary facts are present, the courts are not afraid to step into the human rights fray. A case in point is Strudwick v Applied Consumer & Clinical Evaluations Inc., where the court awarded not just 24 months of reasonable notice and lost benefits, but $20,000 for a breach of the Code, $18,984 for intentional infliction of mental distress, and $15,000 in punitive damages (although it declined to award aggravated damages).
While somewhat unusual, the procedural history of this case likely played a crucial role in its determination, as the defendant had been noted in default, which the court refused to set aside. This decision was upheld by the Court of Appeal, and the Supreme Court of Canada refused to grant leave to appeal. Accordingly, all the facts as pleaded in the Statement of Claim were accepted as true.
The plaintiff, who was 56 years old at the time of the termination of her employment on May 27, 2011, had worked for her employer for approximately 16 years and earned $12.85 per hour. She had become deaf in October 2010, likely as a result of a virus. The employer made multiple refusals to accommodate her disability, including refusing to allow the Canadian Hearing Society to attend at the workplace to determine what accommodations were required, refusing to have important verbal instructions emailed to her, and refusing to allow her to reverse the direction of her desk to permit her to see people entering the office. The employer then ultimately terminated the plaintiff’s employment for insubordination and wilful misconduct for failing to participate in a workplace Toastmasters meeting. At the termination meeting, the plaintiff’s boss demanded she sign an acknowledgement and waiver, all while covering the body of the document and yelling at her.
With respect to reasonable notice periods, this case is likely an outlier. The judge accepted a 24-month period in part because the employer’s “horrendous conduct in this matter warrants recognition of an award at the 24-month level”, yet the Supreme Court has already overturned lower courts’ common practice of bumping up notice periods where the employer engaged in bad faith conduct, instead using aggravated or punitive damages to address such treatment.
With respect to human rights damages, however, this case is likely right on course. The court awarded $20,000 in human rights damages as a result of the employer’s “abject failure to consider or accommodate the plaintiff despite repeated, reasonable and varied requests for same”. Such amount is generally toward the higher end of the current human rights damages scale, although we are seeing increasingly large awards from the Tribunal.
Punitive damages were awarded because the global award was likely not high enough to deter the employer from engaging in similar conduct in the future.
The lesson to be taken from this case for employers and employees alike is that court-ordered human rights damages are alive and well. Potentially increased exposure means employers should be more cautious in their treatment of employees – particularly when terminating an employee – while employees should raise any areas of concern to ensure they have adequately canvassed human rights issues with their lawyer.
