While we recently provided an update on the limits of the duty to accommodate, three recent decisions of the Human Rights Tribunal of Ontario (Tribunal) serve as a reminder of the Tribunal's broad discretion to award damages where warranted.
The Tribunal in Morgan v Herman Miller Canada Inc1 awarded a complainant damages not because discrimination had taken place, but because the employer failed to investigate the complaint of discrimination.
In Fair v Hamilton-Wentworth District School Board2, the complainant received an award that included reinstatement and nine years of back pay after the Tribunal found a breach of the Ontario Human Rights Code (Code).
In Monrose v Double Diamond Acres Limited,3 the Tribunal awarded a migrant worker no longer living in Canada significant damages for a violation of his dignity and a breach of his right to be free from reprisal.
Morgan v Herman Miller Canada Inc. (Herman Miller)
The applicant in Herman Miller complained to the Tribunal that he had suffered discrimination and harassment because of his race. He alleged he was routinely assigned menial tasks outside of his job description, was required to work outside regular business hours, received an email with racist overtones, was unfairly put on probation, was denied an investigation of his complaints and, when he was terminated, was retaliated against.
The Tribunal did not agree that the applicant had been discriminated against. It found that the applicant's job position was new and evolving and the job advertisement for his position made clear that work may have to be performed outside regular work hours. In addition, the Tribunal found that the employer was a small company that expected all its employees to help with tasks that the applicant viewed as menial.
Although it acknowledged the applicant had been put on probation, the Tribunal found this had occurred because he disclosed confidential information to one of the company's biggest contractors. Finally, the Tribunal found that the impugned email did not contain any racist statements.
While the Tribunal found no discriminatory treatment, it nonetheless found the Code had been breached and awarded the applicant $70,799.70 as compensation for lost wages and injury to the applicant's dignity, feelings and self-respect. The Tribunal based its award on the employer's failure to investigate the applicant's complaint of discrimination and for having terminated the applicant in what the Tribunal concluded was an act of reprisal.
The Tribunal found two issues to be critically important:
- The applicant raised his concerns about racial discrimination with the employer's human resources manager and director of sales. An email outlining his concerns was forwarded to the president of the company. Despite assurances by the human resources manager that the applicant's concerns would be investigated, no investigation was undertaken.
- The employer's witnesses offered a number of explanations for the applicant's termination. None of the explanations would give rise to a breach of a protected ground under the Code; however, the varied explanations caused the Tribunal to question whether the termination was actually an act of reprisal against the applicant for having raised his complaint.
The Tribunal made clear it did not have to find that the applicant was discriminated against in order to award damages. It was sufficient that the applicant genuinely believed the respondents were infringing his Code rights and that he had based a complaint that was not investigated (and that ultimately led to his termination) on those beliefs.
Furthermore, the Tribunal noted a complainant does not need to have filed a complaint in writing to his or her employer in order to merit an investigation. The Tribunal was also critical of the fact the employer did not address the applicant's complaint for a month before deciding to terminate him. This caused the applicant a great deal of uncertainty in the period leading up to his termination. The employer was ordered to pay the applicant $15,000 in compensation for injury to dignity, feelings and self-respect.
The Herman Miller case teaches employers two valuable lessons. First, it is important to investigate human rights complaints in a timely manner, whether or not those complaints are deemed "believable" at first blush.
Second, even where a complaint is not well founded, an employer can be liable for terminating an employee for having made the complaint. While a termination for cause may be permissible when an employee makes a complaint that he or she knows to be unfounded, employers are well advised not to terminate an employee when a complaint in good faith is not well founded.
Fair v Hamilton-Wentworth District School Board (Hamilton-Wentworth)
The applicant in Hamilton-Wentworth had been employed as a supervisor of regulated substances, namely asbestos, in the workplace. In 2001, she developed an anxiety disorder related to her fear about the specific responsibilities of her job. Namely, she was afraid that if she made a mistake about asbestos removal in the workplace, she could be held personally liable for a breach of the Occupational Health and Safety Act.
The applicant received long-term disability benefits from 2001 until 2004, at which time she was deemed capable of returning to employment. No suitable position into which the applicant could return was identified. The applicant was terminated by the respondent in July of 2004, based on the evidence of their expert that it was unlikely the applicant would be able to return to her position or to a position with the same level of liability.
The Tribunal found that the board should have investigated possible forms of accommodation with regard to the applicant's disability as early as 2002, responded to the applicant's efforts to obtain information about the essential duties of her position for the purpose of obtaining further medical information, attended a meeting to discuss a return-to-work program that had been arranged by the employer's disability benefits provider, and requested clarification where there was ambiguity in the medical information provided by the applicant.
Its failure to do so and its decision to terminate the applicant was a breach of the Code. Especially problematic for the employer was that the applicant had made it clear there were some positions she was qualified to return to—a fact bolstered by the Tribunal's finding that the board had even interviewed her for one such position.
On the date the Tribunal issued its damages award, the applicant had been absent from the workplace for nine years. To compensate the applicant for her losses, the Tribunal reinstated the applicant and awarded her approximately nine years' back pay in the amount of $419,283.89.
The Hamilton-Wentworth decision is an important reminder to employers to take all steps to the point of undue hardship to ensure that employees receive appropriate workplace accommodations. A failure or refusal to do so may result in a significant damages award.
Furthermore, employers may be required to reinstate a former employee even where there are significant delays between the date of a termination and the date the Tribunal hears a complaint of harassment or discrimination. In Hamilton-Wentworth, the Tribunal acknowledged the delay was largely a result of its own processes. Despite this, it awarded the applicant a significant quantum of damages and a return to her former employment. The Tribunal found that no prejudice had arisen in the employer's ability to present its case to the Tribunal and was unwilling to penalize the applicant for delays that were in no way her fault.
Monrose v Double Diamond Acres Limited (Monrose)
In Monrose, the applicant was a migrant worker employed by the respondent under the Seasonal Agricultural Workers Program who was contracted to work from January to September of 2009. He was terminated on June 8, 2009, and sent back to his home country. The applicant alleged he had been terminated as a reprisal for voicing human rights complaints about allegedly discriminatory comments made by both a supervisor and the owner. He also claimed the manner in which he was terminated was discriminatory.
While the Tribunal did not agree that the matter of dismissal was discriminatory, it found that the applicant had been subject to discriminatory comments on the basis of his racial background that gave rise to discrimination against him. In addition, the Tribunal held that his termination occurred as a reprisal for applicant having voiced a human rights complaint to his employers about the discriminatory comment.
Two findings made by the Tribunal are of special interest:
- The Tribunal found only one instance of a racially discriminatory comment. However, the comment (calling the workers, all Black men, "monkeys") was found by the Tribunal to be so egregious that the single incident triggered a violation of the Code.
- The evidence of the applicant alleging derogatory comments was not corroborated by other witnesses. However, the Tribunal placed a certain amount of weight on the evidence of an expert in the field of migrant workers who stated that such persons are in a position of great vulnerability. The Tribunal held that this vulnerability could explain the lack of corroboration by other workers.
Consequently, even though there was no evidence to corroborate the allegations of discriminatory comments, the Tribunal awarded the applicant damages of $5,500 for lost wages, general damages of $3,000 for damage to his feelings, dignity and self-respect in relation to the monkey comments, and $15,000 in damages for losses associated with the violation of the applicant's right to be free from reprisal. The Tribunal noted, "The respondents' response to this complaint was not to investigate his concerns but to terminate his employment."
Non-monetary remedies were also awarded. The employer was required to implement a human rights policy with a complaints process approved by the Ontario Human Rights Commission (Commission) and to require supervisory employees to participate in the Commission's online human rights training within 120 days of the Tribunal's decision.
Employers reading the Monrose decision should be mindful of the need to investigate any human rights complaints raised by an employee, and certainly not to penalize an employee making a complaint. The Monrose decision also provides a valuable reminder that even a single act of uncorroborated discrimination can give rise to a violation of the Code. The decision also signals the Tribunal's desire to protect vulnerable workers.
The author wishes to thank summer student Dina Peat for her help in preparing this legal update.
1 Morgan v Herman Miller Canada Inc, 2013 HRTO 650.
2 Fair v Hamilton-Wentworth District School Board, 2013 HRTO 440.
3 Monrose v Double Diamond Acres Limited, 2013 HRTO 1273.
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