Beyond The Human Rights Tribunal Of Ontario: Human Rights Damages In Civil Litigation And Key Workplace Safety And Insurance Act Tribunal Decisions

I. Introduction

Since the 2008 overhaul of Ontario's human rights regime, civil courts have been expressly empowered to award remedies for breaches of the Human Rights Code ("Code").² In theory, this reform fundamentally altered the remedial landscape, integrating human rights enforcement into civil litigation and positioning human rights damages as a routine component of employment disputes. In practice, however, the development of civil jurisprudence under section 46.1 has been gradual, uneven, and at times conceptually unsettled. While courts routinely affirm the importance of meaningful compensation for injury to dignity, feelings, and self-respect, the resulting damage awards have largely remained relatively modest, highly fact-specific, and closely tethered to Tribunal precedents.

This paper examines the civil jurisprudence on human rights damages in employment litigation, with particular attention to quantum. It traces the evolution of civil awards from the early post-2008 cases through the Court of Appeal's intervention in Strudwick,³ and considers whether subsequent decisions reflect a genuine recalibration of damages or merely isolated outliers. The paper also briefly explains the interaction between civil human rights remedies and the statutory bar under the Workplace Safety and Insurance Act, 1997.

II. The Expansion of Civil Court Jurisdiction Over Human Rights Damages

Not long ago, human rights remedies in Ontario were confined to proceedings before the Human Rights Tribunal of Ontario ("HRTO"). That landscape changed in 2008 following a comprehensive overhaul of the province's human rights regime. For present purposes, the most consequential reform was the introduction of section 46.1 of the Code, which expressly authorizes courts to award remedies for breaches of the Code:

Section 46.1 is subject to a significant statutory constraint: a plaintiff may not commence a civil action based solely on an infringement of the Code.⁴ In practical effect, claims for human rights damages must be tethered to a viable companion cause of action, such as wrongful dismissal. Once that gateway requirement is satisfied, however, the court's remedial jurisdiction is expansive. The result is a hybrid remedial model in which civil courts can grant meaningful compensation for injury to dignity, feelings, and self-respect.

III. Expansive Principles, Modest Awards

There is considerable lip service paid to the importance of general damages under the Code. Courts and the HRTO routinely emphasize that such awards must meaningfully reflect the seriousness of discrimination and must not be set so low as to trivialize the statute's remedial purpose.

The foundational framework for assessing human rights damages under the Code was articulated in the often-cited decision in ADGA Group Consultants Inc. v. Lane.⁵ On judicial review of a HRTO decision, the Divisional Court reiterated several core principles that continue to guide the assessment of Code damages:

• There is no formula for determining quantum in any given case;
• The decision-maker has broad discretion in the decision maker;
• Relevant factors include humiliation, hurt feelings, the loss of self-respect, dignity and confidence by the complainant, the experience of victimization, the vulnerability of the complainant, and the seriousness of the offensive treatment;
• General damages must not be set so low as to trivialize the social importance of the Code by effectively creating a "licence fee" to discriminate;
• There is no ceiling on awards of general damages under the Code;
• Damages are compensatory, not punitive.⁶

In practice, however, damage awards have remained relatively modest. While the rhetoric surrounding human rights damages is expansive, the quantum awarded in most civil cases reflects a far more restrained and fact-driven approach. This trend is borne out in empirical analysis of both tribunal and court damages.

IV. Empirical Critiques of Human Rights Damages

Section 57 of the Code required a review of the implementation and effectiveness of the changes three years after the amendments came into effect. In 2011, Andrew Pinto was commissioned to conduct a comprehensive review of Ontario's human rights system. While the Report addressed several issues related to efficiency and access to justice, it also offered sharp observations on damages. Notably, Pinto concluded that despite the legislative removal of the cap on general damages, the Tribunal's remedial approach remained conservative and made direct recommendations in that regard:

In 2017, Audra Ranalli and Bruce Ryder published an empirical study analyzing general damages awards issued by the HRTO between 2000 and 2015, tabulating awards in 464 HRTO cases.⁸ It confirmed Mr. Pinto's observations. The authors found that the range of general damages had remained "more or less constant in nominal terms over the 2000-2015 period."⁹ When adjusted for inflation, however, the effective value of awards had declined.¹⁰ Like Pinto, the authors concluded that damages were systematically too low to achieve the remedial objectives of the Code.

The authors also turned their mind to the limited civil case law available at the time and observed that courts had largely followed the HRTO's lead by applying the same non-indexed conventional approach to quantum, although they appeared to award slightly higher general damages.¹¹ That observation, however, was necessarily tentative: the available dataset consisted of only seven reported civil claims in which damages were assessed under s. 46.1.

V. The First Wave of Civil Human Rights Damages

Five years after the Code was amended to permit courts to award damages under s. 46.1, Wilson v. Solis Mexican Foods Inc.¹² became the first reported Superior Court decision in which a court awarded damages for a Code breach in the context of a wrongful dismissal action.

Wilson involved a plaintiff who was treated adversely days after disclosing that she was experiencing back pain and feeling physically unwell. After she had been off work for several weeks, her employer refused to permit her return unless she had achieved a "complete recovery."¹³ No accommodation was offered or considered.¹⁴ While the plaintiff remained on a leave of absence, her employment was ultimately terminated, purportedly due to restructuring.

The Court found that the back pain was a disability for the purposes of the Code and concluded that the plaintiff was given "the run around." ¹⁵ The employer's conduct reflected a failure to engage meaningfully in the duty to accommodate. In coming to its decision, the Court considered the jurisprudence from the HRTO.

In assessing damages, the Court noted that it had sparse evidence concerning the plaintiff's loss relating to "feelings, dignity and self-respect."¹⁶ However, the Court, relying on ADGA, noted that compensation for breach of the Code also includes compensation for the intrinsic value of the infringement. The Court ultimately awarded $20,000 in general damages, recognizing both the seriousness of the infringement of the plaintiff's rights and the tangible impact of the employer's conduct.¹⁷

Seven years after the Code was amended, Partridge v. Botony Dental Corp provided the Court of Appeal its first opportunity to consider a civil damages award under s. 46.1.¹⁸ The plaintiff in Partridge was terminated shortly after returning from maternity leave. The employer alleged she had engaged in wilful neglect. The plaintiff explained that she was discriminated against because she was given a significantly revised schedule, effective immediately, that interfered with her childcare arrangements. There were no reasons that justified the change to her schedule; it was not a bona fide occupational requirement. At trial, the Court found that the dismissal constituted discrimination based on family status.¹⁹

In fixing Code damages at $20,000.00, the trial judge compared this case to a federal case²⁰ under the Canadian Human Rights Act, ²¹ noting that the statutory provisions were "similar." It bears noting, however, that such comparisons are arguably of limited assistance in assessing quantum, given that the federal scheme imposes a statutory cap of $20,000 on general damages, whereas the Code does not.²²

The Court awarded $20,000.00 on the basis that the quantum of damages should reflect the seriousness of discriminatory conduct, particularly where it culminates in dismissal and disproportionately impacts individuals who require childcare arrangements for economic reasons. Such discrimination causes injury to dignity, feelings, and self-respect, while also imposing economic hardship on those least able to afford it. The Court emphasized that damages should both recognize this harm and serve a deterrent function, signalling to employers the obligation to accommodate childcare needs absent legitimate and justifiable grounds.²³

The employer appealed both the liability finding and damages assessment.²⁴ In dismissing the appeal, the Court of Appeal found that while on the "high end," it was clearly within the range supported by the jurisprudence and by the trial judge's findings of wilful misconduct, which were fully open on the evidentiary record. While Partridge illustrates an early calibration of Code damages in a relatively conventional employment discrimination context, another case that same year, Silvera v. Olympia Jewellery Corporation²⁵ underscores how higher awards (albeit not as high as one might expect) are justified where the misconduct is sustained, coercive, and deeply harmful.

In Silvera, the plaintiff was subjected to repeated sexual assaults, coercion, and both sexual and racial harassment.²⁶ Following a period of medical leave, she was wrongfully dismissed.²⁷ The evidence established that she suffered from post-traumatic stress disorder and depression. 

After finding that the plaintiff experienced "the full list of consequences to be considered" ²⁸ in assessing human rights damages, the Court awarded $30,000 under the Code.

If Silvera demonstrates the then outer edge of what courts were prepared to award in cases involving extreme and sustained misconduct, Nason v. Thunder Bay Orthopaedics Inc., ²⁹ decided the same year, illustrates the moderating role of contextual factors in calibrating Code damages, even where discrimination is clearly established.

In Nason, the Court found that the plaintiff's termination was discriminatory and contrary to the Human Rights Code, concluding that his ongoing physical disability was a material factor in the employer's decision to dismiss him. In that case, the plaintiff experienced carpal and cubital tunnel syndrome.³⁰ He filed a WSIB Report. He raised the possibility that his employment might be coming to an end, but the employer then dismissed him. The Court characterized the employer's decision to terminate when it did as "opportunistic," finding that the employer sought to exploit a deteriorating employment relationship to rid itself of a disabled employee.³¹

In assessing damages, the Court acknowledged the seriousness of terminating an employee based on disability but also considered the broader factual context. It noted that the plaintiff had been under psychological care prior to his termination and that his depression was primarily attributable to his disability and extended medical leave rather than the termination itself. The Court further considered the employer's efforts, albeit ineffective, to ameliorate the situation shortly after dismissal. Balancing these factors, the Court awarded $10,000.00 in general damages under s. 46.1(1), reflecting the importance of the right infringed, the actual impact on the plaintiff, and the unusual circumstances of the case.³² The Court declined to award aggravated or punitive damages.³³

The first wave of damages awards for Code damages in civil courts can therefore be seen as typifying a context-driven approach. However, even within this context-driven approach, the upper end of the damages range remained between $20,000 and $30,000.

Footnotes

1 This paper was prepared for the 2026 OBA's Ontario Legal Conference: Labour & Employment Human Rights and Workers Compensation on February 3, 2026.

2. RSO 1990, c H.19.

3. 2016 ONCA 520.

4. Supra note 2, s. 46.1(2).

5. 2008 CanLII 39605 (ON SCDC).

6. Ibid at paras. 151-159.

7. Andrew Pinto, Report of the Ontario Human Rights Review 2012, (Toronto: Queen's Printer for Ontario, 2012) p. 73

8. Audra Ranalli & Bruce Ryder, "Undercompensating for Discrimination: An Empirical Study of General Damages Awards Issued by the Human Rights Tribunal of Ontario, 2000-15" (2017) 13 JL & Equal 91.

9. Ibid at p. 137.

10. Ibid at pp. 137-138.

11. Ibid at p. 127.

12. 2013 ONSC 5799.

13. Ibid at para. 67.

14. Ibid at para. 68.

15. Ibid at para. 70.

16. Ibid at para. 80. Note that Wilson proceeded under simplified procedure and there was a summary trial. No oral evidence was called by either party.

17. Ibid at para. 92.

18. 2015 ONCA 836.

19. 2015 ONSC 343.

20. Johnstone v. Canada (Border Services), 2014 FCA 110.

21. R.S.C. 1985, c. H.6.

22. The $20,000.00 cap was recently challenged as unconstitutional but was ultimately upheld in Parkdale Community Legal Services v. Canada, 2025 FC 912.

23. Supra note 19 at 98.

24. Supra note 18.

25. 2015 ONSC 3760.

26. Ibid at paras. 35, 42-44.

27. It bears noting that in Silvera, the defendants did not appear at trial, and their statement of defence was struck, with the result that all factual allegations were deemed admitted.

28. Ibid at para. 151.

29. 2015 ONSC 8097.

30. Ibid at para. 7.

31. Ibid at para. 191.

32. Ibid at para. 192.

33. The plaintiff appealed in relation to refusal to award loss of income and the defendant appealed the failure to find frustration. Both were unsuccessful. See 2017 ONCA 641.

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