The Canadian Human Rights Act protects against discrimination by federal institutions, such as airlines, banks, telecommunications firms, and the federal government – Canada’s largest employer.
Since 1998, the total amount of damages that victims can receive under the Act for pain and suffering they endure because of discrimination has remained capped at $20,000.
This week, Parkdale Community Legal Services, which has decades of experience representing workers in Ontario, and the Public Service Alliance of Canada (PSAC), which represents more than 245,000 workers across Canada, will be looking to rectify this longstanding injustice by challenging the ceiling on human rights damages at a hearing in the Federal Court.
Although the federal government could concede that the provision runs contrary to the equality protections in the Charter and amend the law themselves, they are choosing to defend it.
“Although the federal government claims to support anti-discrimination initiatives and promote diversity and inclusion, they are resisting attempts to ensure that those who come forward can seek fair compensation for discrimination,” said Sharon DeSousa, National President of PSAC. “This is unacceptable. Because they are not doing what should be done, we are taking the fight to them.”
“Most other legal claims are not subject to caps. Courts have awarded hundreds of thousands of dollars for defamation, terminations carried out in bad faith, and other legal wrongs,” says John No, Staff Lawyer, Workers’ Rights Division & Director of Legal Services, at Parkdale Community Legal Services. “Most provincial human rights tribunals do not have arbitrary caps on the amount of compensation they can award. That means if you work in a provincially regulated workplace, you could receive far more compensation than if you worked in a federally regulated workplace, even if you face the same act of discrimination.”
In 2000, the former Supreme Court Justice Gérard La Forest, who chaired the Canadian Human Rights Act Review Panel, recommended eliminating the caps to ensure complainants receive the full measure of damages arising from the degree of discrimination they experienced.
Former Supreme Court Justice Louise Arbour echoed this call in her recent report on sexual misconduct in the Canadian Armed Forces. According to her report, the maximum available damages are “meager”, particularly when compared to other jurisdictions, which have no limits. Further, this cap on damages acts as a deterrent to filing a complaint, which goes against the entire goal of the human rights regime in Canada.
It’s time the federal government takes discrimination seriously and eliminates this arbitrary barrier to justice.
The hearing of this constitutional challenge is taking place in the Federal Court on June 25-27, 2024.
PCLS is a community legal clinic that aims to tackle poverty law issues through a combination of community development, organizing and action facilitated by legal representation, summary legal advice, and public legal education.
Nelligan Law is grateful for the opportunity to work with PCLS on this important constitutional challenge, to advocate for an equitable process for victims of discrimination to seek justice.
Read more about the case here.
