PublicationsCLIENT ALERT How Recent Changes to the Ontario Human Rights Code Will Impact And Assist Employee’s Wrongful Dismissal Claims The Human Rights Code Amendment Act, 2006 (the “Act”), was passed on December 5, 2006 and signals the most significant changes to the human rights system in Ontario since its inception some 44 years ago. It provides inter alia for the implementation of a new complaints process, the division of powers between the Ontario Human Rights Commission (“Commission”) and the Human Rights Tribunal, and the establishment of a Legal Support Centre. Although given little media play, the amendments also impact significantly on wrongful dismissal law, and the individual’s right to sue for human rights damages in a court of law. Previously, individuals alleging discrimination were limited to remedies at the Ontario Human Rights Commission. Prior to the current amendments, courts could only take human rights violations into account in deciding whether to award punitive or aggravated damages in a wrongful dismissal case, but they could not award damages for discrimination per se. The Commission, on the other hand, could award such damages and had, and continues to have, the power to grant non-monetary remedies, the most important of which is the power to order reinstatement. Pursuant to Section 46.1 of the Act, the court now has the power to make an order directing the party who infringed a right under Part I of the Human Rights Code (the “Code”) 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. In addition, the court now has the power to make an order directing the party who infringed the right, to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect. Accordingly, it would appear that judges may now have the same power as the Commission to order reinstatement, and force employers to provide letters of reference and even make them post letters of apology in the workplace or in the media. From a damages perspective, it means that awards in wrongful dismissal cases will no longer be limited to “pay in lieu of notice” based on such factors as age, position, length of service and the good faith of the employer. Instead, courts will be able to award “human rights damages” which are based on the harm done to the employee. Courts can now also award damages for hurt feelings, which are intended to compensate for mental anguish. These are similar but not identical to aggravated and punitive damages dispensable under the previous wrongful dismissal regime. What this means is that employees will now no longer be disadvantaged in proceeding by way of civil action. It should be noted however that the Act does not permit a person to commence an action based solely on an infringement of a right under Part I of the Code. The claim must be part of a wrongful dismissal action. Employees can file a human rights claim as well as a wrongful dismissal action so long as they do not directly seek human rights damages in the courts. It is difficult to see why they would split their case or proceed solely before the Commission, particularly when courts can award costs, while the Commission cannot. In addition, plaintiffs who proceed by way of court action when claiming damages for human rights infringements in the context of a wrongful dismissal action become subject to the (Ontario) Rules of Civil Procedure, which allows plaintiff’s counsel to take advantage of liberal discovery procedures that are unavailable under the Code. It remains to be seen what the full impact of these amendments will be on the size of wrongful dismissal damages but suffice it to say that human rights infringements will now be routinely claimed by employee’s counsel in much the same way that bad faith or “Wallace damages” are claimed. The foregoing comments are of a general nature, and are not intended nor should they be used as a substitute for legal advice or legal opinions which can be rendered only when related to specific fact situations. |