On June 17, 2014 the Ontario Divisional Court released a judgment in Campbell v. Revera Retirement LP, 2014 ONSC 3233 (CanLII) in which it clarified the principles to be taken into account when awarding damages under the Human Rights Code.
This was an application for judicial review of a decision of the Ontario Human Rights Tribunal (Campbell v. Revera Retirement LP, 2012 HRTO 2410 (CanLII)). The applicant sought monetary compensation to “make her whole” along with severance pay.
Ms. Campbell had been employed at Revera for some 23 years as a Health Care Aide. The job involves lots of standing and walking and, in 1997, she was diagnosed with a “condition that causes ongoing discomfort and swelling”. Prolonged standing and extensive walking exasperates the condition.
She began an extended sick leave on December 14, 2007. In January 2009 her doctor cleared her to return to some work, though it was determined that her pre-leave job was not suitable. The company considered many options and positions. They considered “bundling” but this was seen as too fragmented. They determined that the most suitable job was in the laundry and she was offered that position.
The applicant took the position that this work was not suitable and a further medical note was provided, which the company viewed as “unhelpful” and mainatained that the laundry attendant position was “suitable” and within her restrictions. A letter was sent to the applicant stating that she was to return to work by March 15, 2010 “failing which Revera would conclude that she was abandoning her job.”
The physician sent a further letter dated March 3, 2010 in which he indicated that the applicant was “unable to do any kind of laundry work because of lypodermatosclerosis”. The applicant wrote the company on March 17, 2010, advising that due to her medical condition she was unable to do the position in the laundry.
According to the Tribunal’s statement of facts:
She goes on to say that “(her) doctor has outlined in several letters this position (laundry aide) will contribute to the worsening of (her) medical condition”. She says if there is another modified job available, she would consider it.
The company terminated her employment and a grievance was filed. According to the facts, “following some discussions with her union, the process was discontinued.”
At the Tribunal
The Tribunal found that the company’s insistence that the employee return to work in the laundry, in spite of her doctor’s advice (which the Tribunal accepted not having conflicting medical evidence) was “problematic”.
The Tribunal found that the company had breached the procedural aspect of the duty to accommodate. The Tribunal specifically found no fault in the employer’s efforts to accommodate the employee “up to the point that it made a decision to terminate the applicant for ostensibly abandoning her job.”
The Tribunal refused to make any order concerning severance pay which was beyond its jurisdiction. It referred to Pilon v. Cornwall (City), 2012 HRTO 177 (CanLII) where the Tribunal held:
The applicant seeks compensation in the amount of four weeks’ pay per year of service. Severance pay is generally understood as payment for the capital cost of lost employment – the cost associated with the loss of lengthy employment in the form of vacation entitlement, seniority where applicable and other elements of one’s remuneration associated with length of service. I have no jurisdiction to award severance pay, as such; however, I have considered as part of the analysis of the other heads of monetary compensation the consequences for the applicant of losing her employment after 23 years’ of service. Accordingly, I decline to make a separate damages award [of] severance pay.
The Tribunal then turned to consideration of its remedial authority under the Code and, more specifically, the following:
On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
1. 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 Tribunal applied what has become the two-fold test for assessing the appropriate compensation for injury to dignity, feelings and self-respect. A leading case is Arunachalam v. Best Buy Canada 2010 HRTO 1880 (CanLII). In Arunachalam, the Tribunal reviewed the development of its approach to the assessment of damages:
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: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 (CanLII), 2009 HRTO 940 (CanLII), 2009 HRTO 940 (CanLII), 2009 HRTO 940 (CanLII), at para. 16.
The first criterion recognizes that injury to dignity, feelings, and self-respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.
The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 (CanLII), 2005 HRTO 53 (CanLII), at paras. 34-38.
The Tribunal awarded $5,000 in respect of the intangible losses, including “losses to her dignity, feelings and self-respect”.
Ms. Campbell sought judicial review claiming that this award was unreasonable..
At the Divisional Court
The focus of the Divisional Court was on the issue of the proper principles to be applied in awarding damages in human rights cases.
It was argued that Ms. Campbell “should have been put in the same position she would have been but for this discrimination” and the $5,000 awarded by the Tribunal misses the mark. Reliance was placed on the Court of Appeal’s decision in Piazza v. Airport Taxi (Malton) Assn.  O.J. No. 994 (C.A.). The Board of Inquiry determined that there had been discrimination and that the employee took 11 weeks to find replacement employment. It awarded 11 weeks compensation for lost wages plus $250 in general damages. This was upheld by the Court of Appeal who noted:
The purpose of the compensation is to restore a complainant as far as is reasonably possible to the position that the complainant would have been in had the discriminatory act not occurred. I find nothing in the language of the foregoing section which would import into it the limit on compensation which is imposed by the common law with respect to claims for wrongful dismissal.
Ms. Campbell argued that this required that she be “awarded all monies she would have received but for the discrimination”. The Divisional Court suggested that this was a “misreading” of the case. The Divisional Court summarized the Piazza principles as follows:
Properly understood, its decision stands for the proposition that a finding of discrimination stands apart. Awards made in response to such a finding are founded in the harm caused by the discrimination and are not to be assessed on the basis of some common law cause of action that may appear to be related.
Reference was made to Whitehead v. Servodyne Canada Ltd. (1987), 8 C.H.H.R. D/3847 where it was said that “lost wages during a period of reasonable notice -- is not the correct measure to compensate an aggrieved complainant under the Human Rights Code”.
The Court found that the Tribunal was entitled to do exactly what it did in awarding $5,000 to the applicant. The Court observed that the employer breached the procedural aspect of the duty to accommodate only “after a proper and complete effort to accommodate” was made.
Importantly, the Court also noted that:
A complaint made pursuant to the Human Rights Code does not stand as a replacement or substitute for all other claims or actions that may arise in a given circumstance. It is a particular complaint, which is authorized by a specific piece of legislation. In this case, Louisa Campbell sought the money that she would have obtained under the provisions of the Employment Standards Act, 2000 had her employment not been treated as abandoned. She grieved her termination. In its decision, the HRTO explained that, following discussions with her union, the process was discontinued. The HRTO did not see this loss as attributable to the discrimination. It found that it did not have the authority to award “severance pay”.
The employee and union did not pursue the grievance. The Court opined “she believed she would succeed in attributing all her losses to the finding of discrimination. This brings home the observation made by the union representative that Louisa Campbell appeared more interested in receiving a payment and leaving the workplace than she was in finding appropriate alternate work.”
The application for judicial review was dismissed.
Importance of this Decision
The case is instructive in a number of ways, but most importantly for the discussion of the broad remedial authority that the Tribunal maintains under the Human Rights Code and the underlying principles that it should apply when fashioning the appropriate remedy. Where the breach of the Code relates to a procedural aspect of the duty to accommodate, after extensive accommodation efforts have been undertaken (the Divisional Court used the words “after a proper and complete effort to accommodate” was made) then damages might well be on the modest side (and less than a court would award in a wrongful dismissal case).
The case highlights that the Tribunal does not have jurisdiction to award severance and is not in the business of dealing with wrongful dismissal cases - its jurisdiction is restricted to matters coming under the Code. This is significant, in that, as we noted in a recent Newsletter, many of the applications filed with the Tribunal are in the nature of “straightforward” wrongful dismissal claims. Ultimately these applications are often dismissed by the Tribunal on a prima facie basis.
The Tribunal continues to clarify their mandate and “what you can expect” by way of damages where the application succeeds.