Friday, January 31, 2014

Section 46.1 of the Ontario Human Rights Code: Civil Remedies for Human Rights Claims


The enactment of section 46.1 of the Ontario Human Rights Code in June of 2008 provided for a much-awaited civil remedy for human rights claims. The expectation was that a number of human rights cases, particularly those closely related to a civil cause of action would be diverted to the courts, thereby preventing multiplicity of proceedings.

However, though the provision has now been in force for more than five years, damages have been awarded for discrimination in only one, rather recent case. Far from opening the floodgates of human rights litigation in civil proceedings, plaintiffs appear to be resorting to s.46.1 of the Code rather cautiously. A review of Ontario’s human rights system revealed that as of 2012 there had been only 19 reported cases in total which addressed human rights within a civil action, of which 14 cases specifically relied upon s.46.1 of the Code. None of these cases rendered a finding of discrimination.

Some questions…

The focus of the Court thus far appears to be on setting the parameters of civil proceedings for human rights claims. As a result of the dearth of substantive s.46.1 jurisprudence, there remain a number of questions that will require the Court’s direction going forward. This includes:
  •  The status of a human rights claim if the accompanying civil cause of action is dismissed;
  •  Whether the Court will award damages for discrimination if s.46.1 has not been expressly pleaded;
  • How the Court will exercise its jurisdiction to award non-monetary restitution (i.e. reinstatement; systemic remedies etc.)?
  • The range  and quantum of damages the Court may award for discrimination;
  • Whether the limitation period for bringing human rights claims pursuant to s.46.1 will extend to two years, given that it accompanies a civil cause of action?
Some possible answers…

Civil Cause of Action as a Condition Precedent – Section 46.1(2):

Pursuant to section 46.1(2), in order to commence an action seeking compensation for discrimination, a human rights claim must be accompanied by a civil cause of action. 

While this requirement is straightforward in itself, questions emerge as to what the status of a human rights claim becomes if the underlying civil cause of action is dismissed.  Case law suggests that where a civil cause of action is struck down prior to trial, the accompanying human rights claim cannot survive on its own. 

What is interesting however is that if a human rights application is commenced at the Tribunal prior to any decisions being rendered on a motion to dismiss a civil claim (recall that this may often occur as the limitation period for bringing an application pursuant to the Code is only one year), the application may be barred pursuant to s. 34(11) of the Code

As a result, an individual may be left with no remedy for an alleged human rights violation purely on procedural grounds. In the case of Aba-Alkhail v University of Ottawa, 2012 HRTO 656, which presented with similar circumstances, the Tribunal held as follows:
[29] With respect to the applicant’s argument that he would be left with no human rights redress if both the civil suit and the Application are dismissed, I note that the Divisional Court recently emphasized that even in those circumstances section 34(11) is not discretionary and bars an application from proceeding: Grogan v. Toronto District School Board, 2012 ONSC 319. The Tribunal does not have jurisdiction and, to paraphrase the Divisional Court, it does not matter that the civil action could be withdrawn or dismissed. “In short, s.34(11) requires an applicant to choose between the Tribunal and a (concurrent) civil action”: see para. 48…
There has yet to be a case in which damages have been awarded for a human rights claim, notwithstanding that the accompanying civil cause of action has been dismissed at trial. Presumably, given the framing of s.46.1, a human rights claim can still succeed as a separate cause of action. The Court affirms this position (although somewhat in obiter) in the case of Mykki Cavic v Costco WholesaleCanada Limited, 2012 ONSC 5307:
[47] The defendant has argued that in the event that I dismiss the plaintiff's claim for wrongful dismissal, I need not determine the issue of breach of the Human Rights Code. It is the position of the plaintiff that this is part of the claim and must be determined. I treat this claim as separate from the wrongful dismissal claim and will deal with the issue below.

Pleading the Code:

In Beaver v. Dr. Hans Epp Dentistry Profes sional Corporation, the Tribunal affirmed that a human rights application will be barred pursuant to s.34 (11) of the Code where “the facts andissues in a court action are the same as those in the application." What this means in practice is that an application can be barred even if a Code violation has not been expressly plead in the Statement of Claim. While the Tribunal’s position is well established, it remains to be seen if the Court will award damages for discrimination if section 46.1 of the Code has not been expressly plead. Presumably, given the Tribunal’s position, it would follow that a Plaintiff should similarly be entitled to compensation for discrimination so long as the pleading makes reference to human rights obligations and/or the Code.


Some Guidance – Wilson v Solis Mexican Foods

Human rights damages were awarded by the Ontario Superior Court for the very first time in the recent case of Wilson v Solis Mexican Foods Inc, 2013 ONSC 5799.

The Plaintiff in this case was a Certified General Accountant employed by the Defendant for almost a year and a half. Within a year of commencing her employment, she suffered a back ailment which eventually led to her taking leave from her position. Shortly thereafter, she was informed by the Defendant that her employment was being terminated as a result of the business being restructured.

The Plaintiff brought a claim for wrongful dismissal and further alleged the termination of her employment to have been discriminatory. Given her rather short-lived employment with the Defendant, she was awarded 3 months’ reasonable notice. The Court went on to find that the Plaintiff’s disability had been a factor leading to the decision to terminate her employment. In deciding the quantum of damages to be awarded for said discrimination, the following factors:
[90] First in this case, the plaintiff lost “the right to be free from discrimination” and experienced “victimization”. Second, the defendant’s breach of the statute is serious. The defendant orchestrated the dismissal and was disingenuous at various times both before and during termination.
As a result, the Court held the appropriate award to be $20,000 pursuant to s.46.1 (1) of the Code.
- Simran Bakshi, Student-at-Law, Toronto

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