Most importantly, the judge awarded the
plaintiff $20,000 in general non-pecuniary
damages for breach of the Human Rights
Code. He found that the plaintiff ’s back
disability must have been “a reason” that
the defendant let her go. It did not need to
be the “dominant reason.”
THE NEW BATTLEFIELD
IN ONTARIO
Many HR professionals know that the Ontario
Human Rights Code was amended in
the summer of 2008 to allow claims for Human
Rights Code damages to be grafted on
top of wrongful dismissal claims in courts.
This is the first case in Ontario where
Human Rights Code damages have been
awarded by a court in addition to wrongful
dismissal damages.
Why is that important?
Well, for many plaintiff lawyers, there
will be cases where the plaintiff will get
emotionally and financially exhausted
pursuing a claim as an applicant before the
Ontario Human Rights Tribunal, only to
be told that the employer did not breach
the Human Rights Code, but did wrongfully
dismiss them.
In that scenario, the applicant gets no
relief. He would have to start over by proceeding
with a wrongful dismissal suit in
court, assuming that no limitation period
had passed. Most applicants would not
have the emotional or financial strength to
do that.
Further, in strong cases, the plaintiff/
applicant would want to recoup his legal
fees and under the present appellate case
law; that cannot happen with the Ontario
Human Rights Tribunal.
Proceeding directly to court for both
wrongful dismissal damages and general
non-pecuniary damages solves that problem
for the employee.
DEALING WITH THESE CASES
It will likely be imperative for HR professionals
to instruct their counsel to seek
summary trials in all Simplified Rules cases
where Human Rights Code damages are
sought.
Why?
So that the Summary Trial record, which
contains the Statement of Claim, Statement
of Defence and affidavits of the parties
along with the exhibits can be copied
and sent to HR and relevant management
well before trial. If an agreement is struck
with the plaintiff ’s counsel to exchange law
briefs well before trial, then two things become
quite easy and relatively cheap: trial
preparation and settlement negotiations.
Although examinations for discovery
have occurred in Simplified Rules cases
since 2010, and transcripts are, of course,
available from those discoveries, a well laid
out affidavit with exhibits tells a powerful
story, far more so than discovery transcripts.
A copy of the Summary Trial Record can
justify any litigation decision made, and can
be a teaching tool for an HR professional to
prevent any Human Rights Code breaches
at their company.
Remember, a company can be liable for
Human Rights Code add-on damages
if the trial judge infers that a prohibited
ground of discrimination was “a reason” for
dismissal – the trial judge does not have to
believe that the prohibited ground of discrimination
was a “dominant reason” for
dismissal. ■
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legal words
THE JUDGE FOUND THAT
THE PLAINTIFF’S BACK
DISABILITY MUST HAVE
BEEN “A REASON” THAT
THE DEFENDANT LET HER
GO. IT DID NOT NEED TO BE
THE “DOMINANT REASON.”
18 ❚ JANUARY 2014 ❚ HR PROFESSIONAL