Human rights damages in wrongful dismissal lawsuits, Canadian Employment Law Today (March 4, 2015, p. 3)

04 Mar Human rights damages in wrongful dismissal lawsuits, Canadian Employment Law Today (March 4, 2015, p. 3)

HUMAN RIGHTS DAMAGES IN WRONGFUL DISMISSAL LAWSUITS
By Nikolay Y. Chsherbinin

Employment disputes are frequently resolved through litigation, where litigants seek a slew of damages ranging from statutory to common law to human rights. Until recently, an award of human rights damages in the context of a wrongful dismissal action has been perceived to be a futile exercise, making lawyers and their clients wondering whether civil courts would order damages for a breach of the Human Rights Code. The breakthrough came in 2013 when, in Wilson v. Solis Mexican Foods Inc., the Ontario Superior Court of Justice exercised its long-dormant remedial powers by awarding a discriminated employee $20,000 in human rights damages. In 2015, in Partridge v. Botony Dental Corporation, the same court, under the pen of Justice Susan E. Healey, awarded the same amount of human rights damages. This was followed by the Small Claims Court’s decision in Bray v. Canadian College of Massage and Hydrotherapy, thereby signaling a decisive shift in favour of protecting discriminated employees in civil courts.

Retaliation in breach of Employment Standards Act

Lee Partridge, 36, had her employment terminated for just cause after more than seven years of employment. During her tenure at Botony Dental Corporation, Partridge initially served as its dental hygienist and then as its office manager for more than three years. Following her return from a second maternity leave, the employer directed her to assume her former hygienist duties, with fewer hours of work and at a lower hourly rate. Partridge resisted and reminded her employer of her statutory right, codified in s. 53 of the Ontario Employment Standards Act, 2000 (ESA), which entitled her to be reinstated to the office manager position she occupied prior to her maternity leave. In response, the employer retaliated by asserting that the officer manager position was no longer available and demanded that, effective immediately, she work until 6 p.m. for three out of her four workdays — while knowing this schedule would conflict with Partridge’s daycare arrangements. Subsequently, Partridge was summarily dismissed for allegedly displaying insubordination, contemplating to establish a competing business and, inter alia, copying confidential client records for that purpose. Partridge sued for wrongful dismissal.

No contracting out

Justice Healey found the office manager position remained open at the time of Partridge’s return and the ESA mandated she be reinstated to that position. She reminded the parties that neither the employer nor the employee is entitled to waive the employment standard, and any such contracting out or waiver is voided by the ESA. She also found the employer’s “progressively authoritative and restrictive” responses to Partridge’s insistence that she be permitted to work at least 30 hours each week or similar hours to her pre-maternity leave schedule constituted a reprisal for her asking the employer to comply with the ESA or attempting to exercise her rights under it. As a consequence, Justice Healey awarded Partridge $45,517.44 in losses suffered during the 12-month notice period. In addition, Partridge was awarded $20,000 in human rights damages.

Human rights damages

The Superior Court of Justice’s jurisdiction to consider allegations of a violation of human rights legislation and award the payment of monetary compensation to an employee for an infringement stems from s. 46.1(1) of the Human Rights Code Amendment Act, which came into force in 2008. While this empowered the civil court to order damages for a breach of the code, there appears to be only four decisions in which human rights damages have been awarded. In Wilson, the court dealt with discrimination based on disability and awarded $20,000 in damages. In Berkhout v. 2138216 Ontario Inc., the Ontario Small Claims Court grappled with discrimination on the ground of sex and awarded $15,000. In Partridge, the court dealt with another protected ground — family status. In Bray, the Ontario Small Claims Court awarded a dismissed massage therapist $20,000 for discrimination based on sex and family status.

Discrimination based on family status

The leading Canadian authority on family status discrimination is the Federal Court of Appeal’s decision in Johnstone v. Canada (Border Services Agency). The court found that family status incorporates parental obligations such as child care and both parents must be unable to meet them. It also propounded the four-prong legal test to determine whether there was discrimination on a prohibited ground. In Partridge, Justice Healey found Partridge satisfied the Johnstone test. Partridge was legally obligated to ensure her children were adequately cared for while she was working. When faced with the significantly revised schedule and told it was effective immediately, Partridge testified she was placed in a complex set of childcare arrangements involving a number of extended family members and a neighbour, so she could be available to work until 6 p.m. While the employer’s behavior, which put Partridge in that situation, could be found to have breached the ESA, it is debatable whether it was sufficient to amount to prima facie discrimination based on family status.

The facts revealed that Partridge’s husband was “self-employed” and he might be required to leave his business premises in order to pick up his children. The court’s reasons offer no insight as to why it did not consider it to be a workable alternative solution to the couple’s childcare obligations. As such, this aspect of the decision is somewhat troubling, rendering the court’s analysis incomplete. This is particularly so, because in Johnstone the appellate court made it clear the complainant is required to demonstrate that “neither they nor their spouse can meet their enforceable childcare obligations while continuing to work…”

Ultimately, Justice Healey found that the discrimination experienced by Partridge injured her dignity, feelings and self-respect. In justifying the significant sum of $20,000 in human rights damages, Justice Healey noted that Partridge “took great pride in her job and the efforts that she had made on the defendant’s behalf. At the time of her testimony in this trial, she remained visibly emotionally affected by the ordeal.” This begs the question of what does this have to do with a discrimination based on family status?

Moreover, when read as whole, the court’s reasons seem to suggest Partridge was upset not because the employer discriminated against her based on family status, but because she was dismissed for cause and in retaliation for attempting to enforce her employment standards rights.

The Wilson, Berkhout, Partridge and Bray decisions are examples of a growing trend where human rights damages were awarded in the context of wrongful dismissal actions.

They send a loud message to employers that should they subject their employees to adverse treatment in the workplace or refuse to accommodate their disabilities or childcare obligations, they would do so at their economic peril. Significant awards of damages, in the average amount of $20,000, re-affirm both the importance of human rights breaches by employers and the seriousness of breaches of this nature. Arguably, if the award of damages was lower, it could have been counterproductive, as it would have trivialized the social importance of the human rights’ breaches.

A cautionary note

While the Partridge and Bray decisions clearly signify courts’ willingness to award human rights damages in the context of wrongful dismissal actions, when it comes to the assessment of discrimination based on family status, the methodology the Federal Court of Appeal employed in Johnstone should be preferred. Even though it primarily applies to federally regulated employers, Johnstone contains valuable lessons for provincially regulated employers.

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