All human rights legislation across Canada provide for compensatory damages. Furthermore, human rights legislation empowers tribunals with the ability to reinstate terminated employees if there is discrimination on “prohibited grounds”. This article will discuss reinstatement, pecuniary and non-pecuniary damages that are available in human rights claims.
One of the most significant remedies is reinstatement with back-pay given the inability to institute this remedy under a normal wrongful dismissal action. Reinstatement is the process of putting the terminated employee back into his former employment or comparable employment such that an employees pre-existing seniority and compensation is not significantly compromised.
Reinstatement was a remedy that was rarely awarded in applications before the Human Rights Tribunal of Ontario in the 1990’s and early 2000’s. It was until the Tribunal’s decision in Fair v. Hamilton-Wentworth District School Board, 2012 HRTO 350 and the Ontario Court of Appeal decision that upheld the Tribunal’s award, that reinstatement began to be used again. This decision established that where reinstate is a viable remedy, it should be awarded unless the employer can show undue hardship.
It is important to note that Adjudicators may attach conditions to reinstatement and can refuse to award reinstatement where there has been a significant break-down in the relationship between the complainant and their employer. Reinstatement will not be granted in situations where a company has gone bankrupt or the job no longer exists.
In Ontario if there has been discrimination or a violation of Code rights, a Plaintiff may add the human rights claim to their wrongful dismissal action. In deciding whether to reinstate, the tribunal will look to labour arbitration jurisprudence to support their decision that reinstatement is the best remedy.
Pecuniary and Non-Pecuniary Damages
Employees and complainants are entitled to be compensated for losing other employment benefits such as health and dental and pension losses. The difficulty arrived when determining the period of time to calculate for lost wages and benefits. The purpose of compensation under human rights legislation is to ultimately put complainants in the position they would have been but discrimination not occurred.
Non-pecuniary damages are those damages that compensate for losses to dignity and self respect. They are often difficult to quantify. Section 45.2 of the Ontario Human Rights Code allows the Tribunal to make an order…”directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.” The Federal equivalent has a cap at $20,000. In awarding damages for non-pecuniary loss the tribunal will consider hurt feelings, loss of self respect and self esteem, victimization and bullying of the complainant and seriousness and frequency with which the discriminatory acts occurred.