By Jonathan Pitblado, J. Pitblado Law Office
This recent case appears to be the first case in Ontario where a court, as compared to the Ontario Human Rights Tribunal, has awarded Human Rights Code damages in a wrongful dismissal case. Those Human Rights Code damages were significant.
The court battlefield for Human Rights Code damages was opened in the summer of 2008 via amendments to the Human Rights Code. Those amendments allowed a plaintiff to claim damages for breach of the Human Rights Code in addition to wrongful dismissal damages.
The General Facts
Mrs. Wilson was a middle-aged lady with a C.G.A. designation. She was originally hired by the defendant to be an assistant controller. She made $65,000.00 per annum plus some fringe benefits. After a brief time, she was given a lateral transfer to the position of business analyst. She had a fairly good performance review in that new position.
She then developed some back problems and disclosed them to the employer. Senior management of the defendant met within a week after the performance review. The meeting notes showed the plaintiff complaining about back issues and her performance and long-term prospects with the company were questioned.
Several months later, a generic medical note from a family doctor was provided for some time off. Then, soon thereafter, the family doctor provided a note indicating a gradual return to work of four hours per day the first week, six hours per day the week after and then, finally, eight hours per day the week after that. The employer provided a functional abilities form for her doctor to complete. It was completed and returned in a timely way, and showed very few restrictions other than a need for her to alternate sitting, standing and walking.
The employer did not want her to return to work until she was 100 per cent healthy, as stated in its letters to her. Mrs. Wilson’s family doctor then produced a note indicating that she would have to be off work completely for several weeks in order to recuperate to 100 per cent functionality. In the meantime, the employer was planning to sell a division, and did so while Mrs. Wilson was away from work.
The employer then informed Mrs. Wilson by letter that her services were no longer required as the sale of the division had lessened their need for her. The employer gave Mrs. Wilson two weeks of E.S.A. termination pay.
[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."
That compensation made sense under the Employment Standards Act, as she had been employed for approximately 16 months. No common law notice monies were advanced.
Mrs. Wilson admitted in her trial affidavits that the loss of the division would have dropped her workload, at least in the short term, by 20 to 50 per cent.
[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."
The defence submitted that they let the plaintiff go because of the sale of the division. Thus, they argued, there should not be any liability for Human Rights Code damages. They did, however, admit to owing some common law notice period damages.
The trial judge awarded normal wrongful dismissal damages of three months’ income, minus the two weeks of E.S.A. termination pay.
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.