Williams HR Law LLP

THE BAR IS SET: ONTARIO COURT AWARDS DAMAGES UNDER SECTION 46.1 OF THE HUMAN RIGHTS CODE

September 23, 2013

[vc_row][vc_column width=”1/3″][vc_single_image image=”2223″ img_size=”full”][/vc_column][vc_column width=”2/3″][vc_column_text]In 2008, amendments to the Human Rights Code (“Code”) permitted Ontario civil courts to hear human rights cases for the first time provided that the claimant also had a separate issue that would normally be within the jurisdiction of the civil courts. The intention behind the availability of this civil remedy under section 46.1 of the Code was to enhance procedural efficiency by preventing multiple proceedings such as a wrongful dismissal claim before the civil courts, followed by a human rights application before the Human Rights Tribunal relating to the same termination of employment.

In a decision dated September 10, 2013, a London, Ont., woman became the first person to be awarded human rights damages by the Ontario Supreme Court in a wrongful dismissal action. The reason that the first instance of such an award has occurred almost five years after the amendments to the Code is because of the high settlement rate of wrongful dismissal actions.

After being employed with Solis Mexican Foods Inc. for 16 months, Patricia Wilson was terminated and provided two weeks’ pay in lieu of notice. She immediately commenced legal action alleging wrongful dismissal and an infringement under the Code related to ongoing back problems (a disability under the Code) that she felt were, at least in part, the motive behind the termination of her employment.
The Ontario Superior Court found in favour of the employee with respect to both allegations. She was awarded three months’ notice and $20,000 under section 46.1 of the Code in damages for injury to dignity, feelings and self-respect, in addition to a notice award. The Court awarded the damages under section 46.1 citing the serious nature of the employer’s discriminatory treatment of Wilson with respect to her disability. It was the opinion of the Court that the employer orchestrated the termination of Wilson by timing her exit from the company during a restructuring, even though there had been no efforts to accommodate her back problems, and after it required a “complete recovery” as a condition for her return to work. Moreover, the court noted that there was no concern with Wilson’s cultural or operational fit with the company until after she reported her back injury.

Employers should take note of this decision and expect to see many more like it as the bar has now been set with respect to damages under section 46.1. Employers can also expect to be dealing with more claims through the simplified procedures stream in the civil courts, as opposed to the Human Rights Tribunal—a development which should see claims resolved more quickly.

 

This blog is provided as information and a summary of workplace legal issues.

This information is not intended as legal advice.

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