Civil Remedies for Human Rights Code Violations

By Katie Gibson

The Human Rights Code now empowers courts to decide whether the Code has been infringed where the question arises in a civil proceeding and to award monetary and/or non-monetary restitution for those infringements (s. 46.1).

A plaintiff in a civil action who “is seeking an order under section 46.1 with respect to the alleged infringement” is barred from also commencing an application to the Human Rights Tribunal (s. 34(11)). This provision is intended to eliminate duplicate proceedings.

As reviewed below, courts and the Tribunal have only just begun to grapple with these amendments, and the provisions’ effectiveness in redressing human rights violations is not yet clear.

Implications and Questions Raised

A. New Opportunities for Making Human Rights Claims

The amendments to the Code have created new opportunities for alleging human rights infringements in civil cases. Ontario is now the only province in which courts can award monetary compensation for a private party’s infringement of human rights legislation.

However, civil plaintiffs should be aware that courts’ remedial power does not create a cause of action based solely on a Code infringement. Therefore, to claim Code remedies a plaintiff must still assert another cause of action – e.g. wrongful dismissal.

B. Bar to Duplicate Proceedings

A plaintiff who claims human rights remedies in a civil court action is prohibited from making an application to the Tribunal (s. 34(11)). The early Tribunal caselaw on this question indicates that duplicate actions will likely be barred except where the applicant can show that the civil proceeding will not make even the most general reference to a Code infringement.

Several cases have held that s. 34(11) may bar an applicant’s Tribunal claim even if the plaintiff does not specifically plead s. 46.1 in their statement of claim. For example, in Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, the Tribunal held that an applicant’s claim was barred by s. 34(11) because she had commenced a wrongful dismissal action claiming, in part, punitive damages arising from breaches of the Code. The Tribunal held that s. 34(11) barred the application because “the facts and issues in a court action are the same as those in the application, and ...this plaintiff has asked the court to find an infringement of her rights under the Code and sought damages based on that alleged infringement”, even though she had not specifically pleaded s. 46.1 (para. 11). See also Vickery v. Invista Canada Corp., 2009 HRTO 305.

In addition, the Tribunal has rejected the argument that applications should be permitted to proceed when they claim only public interest or other non-monetary remedies which may not be available in a civil claim. In Hallett v. Grey Bruce Health Services, 2009 HRTO 403, the Tribunal held, “[t]he issue under s. 34(11) is whether an order under s. 46.1 is claimed in the civil action as a result of the alleged Code infringement, not whether additional or different remedies might be capable of being claimed in an application before this Tribunal” (para. 15, original emphasis). See also Dionne Lloyd v. Novopharm Limited where the Tribunal held, “[t]he bar is described in terms of allegations not remedies” (para. 10).

In one case, the Tribunal held that the plaintiff need not even expressly plead a Code violation, as long as the statement of claim refers to the Code and to human rights obligations. In Dionne Lloyd v. Novopharm Limited, 2009 HRTO 377, the Tribunal held that the application was barred by s. 34(11). The applicant had filed a human rights complaint alleging sexual harassment and discrimination in her workplace. She had also commenced a civil action in contract and tort alleging sexual harassment and a lack of appropriate management response; she sought general, special, aggravated, and punitive damages. Although the statement of claim did not request an order under s. 46.1, it did refer to the Code and the law prohibiting discrimination and harassment in employment, and the Tribunal held that the arguments “are not distinct despite the quite different legal framework in which they are being advanced” (para. 8). The Tribunal further noted that the “absence of express pleadings of a violation of the Code or an express request for an Order under section 46.1 is not determinative” (para. 9).

However, the Tribunal allowed the application to proceed in another case because the plaintiff’s civil claim was limited to an allegation of wrongful dismissal and did not claim a Code infringement or remedy. In Baghdasserians v. 674469 Ontario Ltd., 2008 HRTO 404, the Tribunal held that it could hear an application alleging that an employee was terminated on the basis of his creed and age even though he had already commenced a civil action. The Tribunal noted that the application was not barred by s. 34(11) because the civil claim was solely “for wrongful or constructive dismissal on the ground that the respondent’s decision to terminate his employment contract was without cause” and “[t]here is no claim that the applicant’s rights under the Code were infringed and no remedy is sought for an alleged breach of the Code” (para. 14).

Overall, these early cases suggest that the Tribunal will reject duplicate proceedings except where the statement of claim in the civil proceeding does not make even the most vague or general reference to a Code infringement. What remains to be seen is whether courts will step in and order Code remedies in the many instances where the Tribunal declines jurisdiction. It is possible that courts may require more explicit pleadings of human rights infringements and remedies. In that case, a gap could open, leaving some victims of human rights violations without a remedy.

Victims of human rights infringements therefore have a choice. If they wish to pursue Code remedies in the courts, they should consider explicitly pleading Code violations and s. 46.1 remedies in their civil actions. If they wish to pursue concurrent actions, they should ensure that the statement of claim in the civil action does not make any suggestion at all of Code infringements or remedies. Either approach involves risks since the court and Tribunal jurisprudence remains unsettled.

C. Different Remedies

The types of remedies and quantum of damages that civil courts are likely to award has not yet been determined.

Courts may order “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”. They may also order restitution other than through monetary compensation “for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect“ (s. 46.1).

The amount of monetary compensation that courts are likely to order is not yet clear. The Code used to cap mental anguish damages at $10,000 and required applicants to demonstrate that the infringement was wilful or reckless. Now that these requirements have been lifted, the Tribunal is likely to increase awards, and courts may do so as well.

Also unclear is how courts will exercise their jurisdiction to award non-monetary restitution. The Tribunal can direct “any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act” (s. 45.2(1)), but courts do not have this power. It remains to be seen whether courts will interpret their jurisdiction to award non-monetary restitution to include the power to order some form of systemic remedies, such as requiring an employer to take specific steps to combat discrimination in the workplace. Another open question is whether courts will order reinstatement of an employee whose wrongful dismissal involves Code infringements.

As courts begin to address these issues, plaintiffs may wish to claim higher damages than the Tribunal previously awarded and push for an expansive interpretation of non-monetary restitution that would include systemic remedies and reinstatement.

D. Timing Concerns

Questions have been raised as to whether courts’ new power to award remedies for human rights infringements applies to claims that arose before the amendments to the Code came into force on June 30, 2008. This may cause problems for plaintiffs.

In a short endorsement, the Court of Appeal recently concluded that s. 46.1 of the Code creates a new substantive jurisdiction and that it should be read prospectively only (Dobreff v. Davenport, 2009 ONCA 8). However, the Tribunal has ruled in at least two cases that s. 34(11) may bar a Tribunal application even if the events leading to the civil action occurred before s. 46.1 came into force.

This inconsistency suggests that claimants who filed civil court actions seeking human rights damages for events arising before June 30, 2008 may be denied s. 46.1 remedies, but may also be barred from bringing Tribunal applications. This would leave them without a remedy for the infringement of their human rights. Individuals in this position may wish to argue that in light of the Court of Appeal decision, the Tribunal should now allow older applications to proceed.