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w w w . C A N A D I A N L a w y e r m a g . c o m M A Y 2 0 1 5 55 However, other labour and employ- ment lawyers aren't seeing much of a change at all. "In my experience it doesn't appear damages awards have increased much, if at all," says Danny Kastner, of Kastner Law LLP. "There have been some huge human rights cases with awards for back pay that have been very significant because a lot of time has passed, but what Pinto was talking about was just general damages for breach of the code." That's different than damages for income loss, says Kastner. "Where they have been shy in the past, and continue to be somewhat conservative about, is awarding general damages for breach of the code, which is when you have violated someone's human rights, you injured their feelings of dignity and self-respect, and as a result, separate and apart from any income loss, you are liable to pay a certain amount in damages, which are what most people are referring to in human rights damages — it's still hovering around the $10,000 to $15,000 mark in most cases," says Kastner. Kastner points out that Pinto's rec- ommendations were not binding on the tribunal — cases are still adjudicated on individual facts and circumstances. He says vice chairs of the tribunal have maintained the "same compass" when it comes to assessing damages. Anne Posno, counsel at Lenczner Slaght Royce Smith Griffin LLP, says prior to the change in legislation, there was a particular provision that the tri- bunal would award essentially general damages and something on top of that if they wanted to for mental anguish. "They tended to award mental anguish when it was something that was trig- gered by willful or reckless conduct — it was along the lines of punitive-type damages," says Posno. "Usually those punitive-type awards occurred in the context of sexual harassment in the con- text of workplace wrongful dismissal." Post-legislative change, the language used is for "injury for dignity, feelings, and self-respect." She says, "There is a provision allowing the tribunal to do anything they want, but they seem to lump everything into the general dam- ages, loss of dignity, and self-respect." In the context of sexual harassment- related terminations, Posno says the damage award numbers don't seem to have changed over the years, even if you incorporate what you used to include as punitive damages. She points to a trilogy of cases in 2014 involving three young women sexually harassed during their LEGISLATIVE CHANGE PINTO REPORT Year Damages $50,000 $40,000 $10,000 $0 1995 2005 2000 2010 2015 2020 $60,000 AWARDS CURLING V. TORIMIRO $41K ($21K GEN/$20K MENTAL ANGUISH) SEXUAL HARRASSMENT - EMPLOYMENT SMITH V. MENZIES CHRYSLER $50K ($25K+$15K+$8K+$2K) SEXUAL HARRASSMENT - EMPLOYMENT KOTEVSKI V. 1217993 ONTARIO INC. $40K SEXUAL HARRASSMENT - EMPLOYMENT HARRIOT V. NATIONAL MONEY MART $30K ($22.5K+$7.5K) SEXUAL HARRASSMENT - EMPLOYMENT SMITH V. ROVER'S REST $35K SEXUAL HARRASSMENT - EMPLOYMENT J.D. ULTIMATE CUT UNISEX $40K SEXUAL HARRASSMENT - EMPLOYMENT WESLEY V. 2252466 ONTARIO INC. $25K (18K DISABILITY - EMPLOYMENT) ($7K DISCRIM. COMMENTS) IFRAH V. NATIONAL INCOME PROTECTION PLAN INC. $5K GENDERPREGNANCY - EMPLOYMENT DISCRIMINATION BROOKS V. TOTAL CREDIT RECOVERY LIMITED $2,500K RACIAL/DISCRIMINATORY COMMENTS HAMILTON (CITY) V. AMALGAMATED TRANSIT UNION $25K; ONTARIO LABOUR ARBITRATION AWARDING DAMAGES FOR VIOLATONS OF THE HUMAN RIGHTS CODE LANE V. ADGA GROUP CONSULTANTS INC. $45K ($35K GEN/$10K MENTAL ANGUISH) DISABILITY - TERMINATION OF EMPLOYMENT DESOUZA V. GAUTHIER $25K (INCL. MENTAL ANGUISH) SEXUAL HARRASSMENT - EMPLOYMENT QUERESHI V. TORONTO (CITY) BOARD OF EDUCATION $25K: ON APP. GEN DAMAGES UPHELD COSTS REVERSED RACIAL/ DISCRIMINATORY COMMENTS - EMPLOYMENT RANGE: NONE DISCUSSED PLEASANT V. MAINLINE MANUAFACTURING & INSTALLING INC. $7K (INC. MENTAL ANGUISH) DISCRIMINATORY COMMENTS ROMANA V. 1577118 ONTARIO INC. $1K (NO AWARD FOR MENTAL ANGUISH) DISCRIMINATORY COMMENTS $20,000 $30,000 Human Rights Awards BAYLIS-FLANNERY V. DEWILDE $45K ($35K GEN/$10K MENTAL ANGUISH) SEXUAL HARRASSMENT - EMPLOYMENT NARAINE V. FORD MOTOR CO. OF CANADA $30K (20K GEN/$10K MENTAL ANGUISH) RACIAL DISCRIMINATION - EMPLOYMENT - SOURCE: LENCZNER SLAGHT

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