Ontario's human rights legislation underwent various
amendments in 2008. For the first time, a court deciding a
civil lawsuit was allowed to order remedies for violation of human
rights protected under the Human Rights Code. In
other words, it was and is no longer just the Human Rights Tribunal
of Ontario (the specialized body that decides human rights
applications in Ontario) that can order a remedy for a human rights
violation. Courts are now empowered to do so as well.
Section 46.1 of the Human Rights Code allows a court in a
civil proceeding to order either monetary compensation or a
non-monetary form of restitution for loss arising from a violation
of a person's human rights. The only restriction is that
the court case cannot be based only on a human rights violation
– it must involve additional wrongful conduct.
Until very recently, this new section of the Human Rights
Code was untested, in that there were no reported court cases
dealing with it. This changed with the decision in Wilson
v. Solis Mexican Foods Inc., 2013 ONSC 5799, in which the
Superior Court of Justice ordered a payment of monetary damages for
breach of the Human Rights Code. This case involved
an employee with a medical disability who had been wrongfully
terminated by her employer. In addition to awarding the
plaintiff damages based on what the court concluded would have been
a reasonable notice period, the judge awarded her $20,000 for the
violation of her right to equal treatment in employment despite her
disability, and the intrinsic injury to dignity, feelings and
self-respect that a person who suffers discrimination in the
I anticipate that the decision in Wilson v. Solis Mexican
Foods Inc., and section 46.1 of the Human Rights Code
on which the court relied, will be used in civil lawsuits where
sexual and/or physical abuse is alleged.
There are five broad social areas to which the Human Rights
Code applies and in which discrimination is prohibited:
Services, goods and facilities;
Occupancy of accommodation;
These are all contexts in which sexual assault and physical
abuse and violence can and do occur. Consider, for example,
an elderly resident of a retirement or nursing home who is not only
sexually violated by a staff member charged with caring for her,
but is also subjected to disparaging comments about her age or
medical condition. This would not only give rise to a lawsuit
in which damages could be claimed for sexual assault and battery,
and for which the staff member's employer would likely be
vicariously liable, but also for a remedy (both monetary and
non-monetary) to address the additional violation of the
resident's right to be free from discrimination on the basis of
age and disability in her occupancy of accommodation and her
receipt of services. In a case such as this, there could be
some creative non-monetary remedies available by virtue of section
46.1 of the Human Rights Code, such as moving the resident
to a different location or provision of additional and ongoing
forms of care, all at the employer's expense. These types
of non-monetary remedies would not be available in a typical court
case if it were not for the Human Rights Code.
There are numerous prohibited grounds of discrimination under
the Ontario Human Rights Code – these include race,
place of origin, colour, ethnic origin, citizenship, sex, sexual
orientation, age, marital and family status, and disability.
I think it is fair to say that, not infrequently, discrimination on
one or more of these grounds accompanies sexual and/or physical
Where, in an abuse case, the wrong and the resulting harms are
not adequately addressed by an award of conventional damages, then
consideration should definitely be given to whether an additional
remedy under the Human Rights Code, be it monetary and/or
non-monetary, is also warranted. The decision in Wilson
v. Solis Mexican Foods Inc. substantiates this, and lawyers
involved in sexual and physical abuse cases need to be open to
pursuing this additional avenue of recourse if they are acting for
plaintiffs, and anticipating and responding to it if they are
acting for defendants.
Elizabeth Grace is a civil sexual abuse lawyer in
Toronto and has specialized in sexual assault matters for
almost two decades now.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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