Canadian Lawyer

54 M A Y 2 0 1 5 w w w . C A N A D I A N L a w y e r m a g . c o m even years ago, the Ontario Human Rights Code was amended to address certain shortcomings of the human rights enforcement system with one aspect address- ing the awarding of finan- cial damages. But has much changed since 2008? Part of the change in 2008 included increased monetary damages including: unspecified compensation for losses arising out of the infringement of a pro- tected right; removing the $10,000 limit on damages for mental anguish; provi- sion for orders of restitution (other than financial compensation); a provi- sion for civil courts to order monetary compensation; and unspecified com- pensation for losses arising out of the infringement of a protected right. As well, there was also a provision made to include a potential punitive fine, up to $25,000, to punish parties that violate the act. Essentially, the code no longer had any limitations as to the amount of monetary compensation or restitution for damage to "dignity, feel- ings, and self-respect." Then, in 2012, the Pinto report — a statutory review of the Ontario human rights process commissioned by the attor- ney general and conducted by employ- ment lawyer Andrew Pinto — made a recommendation that the Human Rights Tribunal of Ontario should far exceed the previous $10,000 cap when it came to breaches of the code by corporate defen- dants. Even though the code was amended to remove the cap on damage awards, what Pinto had seen was that damage awards imposed from 2008 to 2012 were not much different than what had been issued before the amendments. But since 2008, and more recently since the Pinto report, has the tribunal exercised its ability to levy larger damage awards? Labour and employment lawyers seem mixed on the answer but it does seem the tribunal is taking each case and analyz- ing the circumstances specifically, and in some cases making larger awards. Damage awards have been increasing says Maureen Quinlan, an associate with Hicks Morley Hamilton Stewart Storie LLP. "Individuals don't specifically refer- ence that Pinto report, but the recom- mendations in the report are well known by members of the tribunal and we have seen the impact that the numbers have increased. Each case tops the previous one." Since the Pinto report came out, there have been a number of awards that have broken the previous mould, says Louis Sokolov of Sotos LLP. "It's difficult on the basis of looking at a few cases to know if there is a new trend or not, but the impres- sion is the numbers are getting larger." Sokolov says there is a "perfect storm" occurring in the context of the human rights tribunal. "You have a trend towards increased damages, you have no notion of reasonable notice in the case of employ- ment decisions and the absence of any costs regime. You put all those factors together and end up with claimants who are emboldened, you have respondents who often are encumbered in their ability to defend the claims and you end up with bigger numbers." Sokolov says adjudicators look at what has happened in other cases and once the trend starts it builds momen- tum. He notes claimants are being more aggressive in what they are asking for and the more pressure there is for larger settlements will naturally lead to larger awards. "I think a lot of clients are unaware of both the substantive rights protected in the human rights code as well as the potential scope of remedy," says Soko- lov. "It becomes something of a rude awakening to many clients when they are on the receiving end of such a com- plaint. Smart employers are insulating themselves from potential complaints by making sure their policies and practices are up to date." L E G A L R E P O RT \ L A B O U R & E M P L O Y M E N T Tracking damages Changes to the Ontario Human Rights Code in 2008 were intended to give more latitude in terms of awarding damages but has that actually happened? By Jennifer Brown S IT'S DIFFICULT ON THE BASIS OF LOOKING AT A FEW CASES TO KNOW IF THERE IS A NEW TREND OR NOT, BUT THE IMPRESSION IS THE NUMBERS ARE GETTING LARGER. LOUIS SOKOLOV, Sotos LLP

• Cover