Thoughts from a Management Lawyer

Arbitrary, discriminatory or in bad faith - what's it mean?

My new blog post (Arbitrary, discriminatory or in bad faith - what's it mean?) dealing with the high-test for establishing a breach of the unions' duty of fair representation is up at the Watershed LLP Blog. 

Quantifying Intangible Losses under the Human Rights Code

This is my most recent post from the Watershed LLP Blog.  

The Ontario Human Rights Tribunal released a decision this week in which it found that the employer had discriminated against the employee when it terminated her employment.  Specifically, the Tribunal found that it was "more likely than not that the applicant .... was dismissed because of her sex".

The Tribunal, in discussing the appropriate remedy, considered whether any amount should be awarded to the applicant as compensation to address the effect of the breach of the Code on her dignity, feelings and self-respect under section 45.2(1)1 of the Code.  As the Tribunal noted, section 45.2(1)1:

... encompasses monetary awards made to compensate for intangible loss and suffering experienced because of a breach of the Code.

As the Tribunal observed, quantifying these damages is not easy.

A leading case in this area is Arunachalam v. Best Buy Canada where the Tribunal observed:

Monetary compensation for injury to dignity, feelings and self-respect recognizes that the injury to a person who experiences discrimination is more than just quantifiable financial losses, such as lost wages.  The harm, for example, of being discriminatorily denied a service, an employment opportunity, or housing is not just the lost service, job or home but the harm of being treated with less dignity, as less worthy of concern and respect because of personal characteristics, and the consequent psychological effects.

In terms of figurring out what amount should be awarded, like decisions should be treated similarly in terms of quantum, and:

The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination.

* * *

At the same time it has recognized that the actual impact of the discrimination on the applicant is an important consideration in assessing compensation. In addition, the Divisional Court has recognized that the Tribunal must ensure that the quantum of damages for this loss is not set too low, because doing so would trivialize the social importance of the Code by effectively creating a “license fee” to discriminate.

This is all well and good, but, really, determining the quantum is somewhat of an arbitrary exercise, though the following factors have been considered:

• Humiliation experienced by the complainant
• Hurt feelings experienced by the complainant
• A complainant’s loss of self-respect
• A complainant’s loss of dignity
• A complainant’s loss of self-esteem
• A complainant’s loss of confidence
• The experience of victimization
• Vulnerability of the complainant
• The seriousness, frequency and duration of the offensive treatment

Damages for intangible losses must not be unduly high or unduly low and must strike a balance between applicant and respondent.  In this case, the Tribunal awarded $10,000.  

Again, where this number comes from, who knows.  It's a number, really pulled out of thin air and largely based on what the applicant says on the stand.  In that sense, it's determination is, to quote the Tribunal, "a difficult exercise".

 

Thank You to the Lawyer's Weekly

I wanted to thank the Lawyer's Weekly for naming me one of Canada’s top legal social media influencers.  The authors of the article are Jordan Furlong and Warren Smith and  I'm truly honoured to be included in this list.  

While I have been delinquent in my writing here, I have been writing more regularly over at the Watershed LLP Blog.

 

 

Appropriate Forum Issues in Employment Law

My new post Appropriate Forum Issues in Employment Law is up at the Watershed LLP Blog.  Please check it out there.

Dismissing Human Rights Applications Against Franchisors

I've written a post on the Watershed LLP Blog called Dismissing Human Rights Applications Against Franchisors.   Please read it there and subscribe through the RRS feed if you're so inclined.

 

Abandoning your job (or not)

My post Abandoning your job (or not) is up on our new Watershed LLP Blog.  Please check it out and have a look at the new website while you're there.