Introduction to Workplace Human Rights
Human rights remedies offer a distinctly different and potentially much more powerful relief than the usual employment law cases brought by civil action. The following cases illustrate the potential of such awards.
A recent award in New Brunswick ordered an unprecedented sum for injured feelings of $230,000. The prior high water mark was $40,000 and some seven years prior to the two $40,000 awards, the maximum had been $15,000. In addition, this new case also allowed for a lost income claim of $400,000 plus a sum for lost pension accruals which had yet to be calculated at the time of the decision. A further award was made for the lost value of her residence due to the need to effect a quick sale. That is estimated to be $20,000. The total sum owed under the decision was close to $700,000.
A woman in Calgary, a victim of sexual harassment, recovered over $800,000 in her claim against her employer. [efn_note]City of Calgary v CUPE Local 38 This was a case which was not pure human rights as the arbitrator, with the agreement of the parties, used a blend of human rights, common law and arbitral remedies. The great extent of the claim was for past and future income loss which would have followed in pure human rights theory. [/efn_note]
A second decision in Alberta allowed for a total damage award of $656,920 due to adverse treatment due to gender and retaliation. [efn_note] Walsh v Mobil Oil, The great bulk of this award was for lost income. $35,000 was compensatory damages. [/efn_note]
An Ontario decision [efn_note] City of Hamilton The sum of $30,000 was also awarded to compensate for the applicant’s injured feelings.[/efn_note] initially granted 8 years back pay of $420,000 plus reinstatement due to the employer’s failure to accommodate the applicant’s disability by allowing for a return to work following her disability. [efn_note] The Ontario Court of Appeal dismissed the appeal in May of 2016. [/efn_note] This decision was upheld by the Divisional Court and the Ontario Court of Appeal. The final total of back compensation was in the range of 12 years.
A person who alleged that he was terminated due to his age [efn_note] (Gorksy) in McKee v Hayes-Dana 17 CHRR D/ 79. [/efn_note] was awarded in excess of 8 years pay. A similar case awarded nine years wage differential due to the denial of a promotion, also due to age. [efn_note]Singh v Statistics Canada (Mactavish) [/efn_note]
An award of a potential 10 year income loss was made in 2001 by the Canadian Human Rights Tribunal due to discrimination on account of gender. [efn_note] McAvinn v Strait Bridge Crossing. [/efn_note]
A comparable lost income claim of 10 years in addition to a prospective income loss of an additional 5 years totaling $280,000 due a perceived disability was granted by a the federal human rights tribunal. [efn_note]Turner v Canada Border Services CHRT This was in addition to two distinct awards of $15,000 for compensatory and “special damages”. [/efn_note]
The B.C. Tribunal awarded 6 years lost income of $385,000 to a medical doctor who had been delayed entry into a specialist program due to a mental disability. [efn_note] UBC v Kelly[/efn_note]
A human rights tribunal in Prince Edward Island ordered damages for lost earnings in the sum of $425,000 to a minister who had been adversely treated by the Church. [efn_note] Reverend Gael Matheson v Presbytery of Prince Edward Island [/efn_note].
These are significant awards which are unparalleled in normal employment law claims based on the wrongful dismissal concept.
Compensatory awards for damages for personal indignity remain generally in the range in most jurisdictions of $10,000 to $50,000,[efn_note]There is a variation of the expected range which varies with the jurisdiction, as reviewed subsequently. [/efn_note] which is, nonetheless, a substantial increment from 2 decades ago.
Ontario has awarded $200,000 to a victim of prolonged sexual harassment. New Brunswick has allowed the sum of $230,000 for damages to a adverse action on account of political belief. British Columbia set the damage sum at $176,000, even after a 20% discount, for the failure to protect race and mental illness. These awards represent a dramatic shift in the range of damage expectations.
In addition, reinstatement remains an additional potent form of relief.
The human rights regime has been a sleeping giant for many years. It has now awoken.
The human rights remedy is often the most powerful form of relief when the facts meet the definition of a human rights violation in the workplace. It is one which must be well understood for its full impact to be realized.
It is important to understand liability issues, remedies and the process of human rights claims in the employment relationship to provide an awareness of when and how to harness the power of this remedy, and also, how to prevent and defend such cases.
In so doing the laudable goal of the recognition of equality and dignity of all persons in the workplace will hopefully also be understood and promoted. May this be so.
👤 About the Author •
📚 Human Rights Index •
🎥 YouTube •
