On June 16, 2016, Wassim Garzouzi spoke as part of Lancaster House’s audio conference on Stopping Sexual Harassers Cold: Optimal practices for complaint procedures, investigations, and survivor support. The program addressed how to identify sexual harassment, best practices for investigating complaints, and internal procedures and outside resources that can help fractured workplaces. The audio conference also covered the factors that arbitrators and human rights tribunals consider when assessing damage awards for harassment.

In a recent decision, the Superior Court of Ontario awarded a dismissed employee punitive damages because of the employer’s conduct in terminating the employee. This judgment sends a clear message to employers that mistreatment of employees upon termination will not be accepted, and can result in additional liability.

Tom Morison’s employment was terminated after approximately 8 years. Mr. Morison brought a claim for wrongful dismissal. In addition to his claim for reasonable notice, he also alleged that the employer had violated its duty of good faith in the termination, including:

• Notwithstanding excellent performance, the employer alleged that Mr. Morison had been terminated for cause, without any meaningful evidence to support its position.
• The employer delayed issuing a Record of Employment for several months after the termination, preventing Mr. Morison from accessing employment insurance.
• The employer failed to pay Mr. Morison the minimum amounts owed to him under the Employment Standards Act (“ESA”) until three years after the termination.

In his judgment, Justice Roger agreed that this conduct warranted an award of punitive damages. Justice Roger concluded that such conduct was “reprehensible”. He added that the employer’s actions “exceeds what might be considered as ill-advised. The allegations of cause, made with no reasonable basis, and the significantly delayed payment of statutory amounts were intentional and financially impacted the plaintiff. These actions of the defendant were designed to financially benefit the defendant and the defendant had knowledge of the plaintiff’s precarious financial position. Such a conduct is ‘malicious, oppressive and high-handed’ and ‘a marked departure from ordinary standards of decent behaviour’.”

Justice Roger determined that an award of $50,000 in punitive damages was appropriate in the circumstances.

Important message sent to employers

This decision sets an important precedent and will hopefully give pause to employers who try to exert financial pressure on dismissed employees. Unfortunately, some employers resort to tactics such as delaying payment of ESA notice and severance, or raising allegations of just cause without any reasonable grounds, in an attempt to secure a quicker and less expensive settlement of the termination.

These strategies are reprehensible, and received a well-deserved rebuke from the Court in this judgment. Recently terminated employees are vulnerable and are often prepared to waive their rights for an immediate payout, even if the amount is below what is reasonable or required by law. By delaying payment of the ESA minimums, employers add additional pressure on employees to accept less than desirable settlement agreements. This judgment gives employees and their advocates greater power to defend against these tactics: the prospect of a significant award of punitive damages will hopefully deter other employers from acting in this manner in the future.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

On July 21, 2016, James Cameron spoke to Ottawa Parkinson Canada to provide an information session on applying for LTD benefits and the legal and appeal processes available for challenging decision denying benefits.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

If you have been treated differently by your employer because of your sex, disability, race, sexual orientation, or one of the other protected grounds of discrimination, you may want to consider filing a human rights complaint. One of the first questions you may have, in addition to whether you have been discriminated against at work, is where you should go to file your human rights complaint. There are multiple forums to bring a human rights complaint, each with its advantages and disadvantages.

Human Rights Tribunal

The first, and most obvious, forum for a human rights complaint is the human rights tribunal. For employees in Ontario, this is the Human Rights Tribunal of Ontario, which applies the Human Rights Code. Under the Code, any person who believes his or her rights under the Code have been infringed may bring a complaint (called an Application) to the Tribunal.

The one exception, in terms of who can apply, is employees under federal jurisdiction. Certain types of employers (e.g. airlines, banks, and Canada Post) are federally regulated. If you work for a federally-regulated employer, you must file your human rights complaint with the federal Canadian Human Rights Commission.

Advantages

• You have access to all remedies provided under the Human Rights Code, including the possibility of reinstatement, damages, and systemic orders.
• The Human Rights Tribunal of Ontario is a specialized tribunal with human rights expertise.
• You do not have to be a lawyer to appear at the Tribunal, and it is possible to navigate its processes with limited or no legal representation.

Disadvantages

• You cannot seek remedies beyond those in the Human Rights Code.
• You cannot obtain compensation for legal fees.

Civil Court

It is also possible, in some circumstances, to bring a human rights complaint in civil court. This option is provided under section 46.1 of the Human Rights Code, which gives the courts the power to award monetary compensation and restitution remedies under the Human Rights Code.

This option, however, is not available to everyone: you cannot bring an action in court if the only basis for the claim is an infringement of the Human Rights Code. This means that there must be some additional wrongful act in the court claim (for example, a claim of wrongful dismissal).

Advantages

• The biggest advantage of this avenue is that it permits you to advance a claim of discrimination, as well as other claims, in a single proceeding. So, if the human rights issue is one of multiple claims against the employer, it may be more efficient to bring a single court action.
• You can obtain compensation for legal fees.

Disadvantages

• The process is more complicated and lengthy than the Tribunal’s process.
• The court lacks the same level of expertise in human rights principles as the Tribunal.
• You cannot obtain all remedies available under the Human Rights Code.

Labour Arbitration

Labour arbitrations are an increasingly common forum for the adjudication of human rights complaints. However, this forum is only available to unionized employees. If you are a unionized employee, you should contact your union about your human rights issue, to determine if they will represent you in the grievance arbitration process. If the union chooses not to proceed with a grievance, it may still be possible for you to pursue your human rights complaint in one of the other forums.

Conclusion

The issue of the most appropriate forum to file your human rights complaint is not always straightforward. There may be a dispute about whether your complaint falls under federal or provincial jurisdiction; and, there may be important strategic considerations as to whether you should proceed in court or through the Tribunal. A human rights lawyer can assist you in weighing the pros and cons of the available options and ensuring your rights are protected by following the correct process.

We are here to help: Consult one of our experienced human rights lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are considering filing a human rights complaint.

On August 18, 2016, David Yazbeck moderated an audio conference for Lancaster House dealing with issues related to autism in the workplace, including how to counter stereotypes regarding autism spectrum disorders and how to accommodate individuals with autism spectrum disorders in their employment.

More information about the audio conference is available here.

On November 5, 2016, RavenLaw proudly supported the Workers’ Bowl, sending a team to the annual fundraiser for the Workers’ Action Centre, a Toronto-based organization that advocates for fair working conditions for vulnerable workers. The Workers’ Action Centre has a Workers’ Rights Info Line that workers can call for support, offers workshops on workers’ rights and is part of the campaign to raise the minimum wage to $15.

The bowling tournament is hosted by the Ontario Employment Education & Research Centre (OEERC), a non-profit that works with community partners such as the Workers’ Action Centre to educate workers on their rights and provide supports to workers whose rights have been violated.

The “Ravenclaw” team — Wassim Garzouzi, Michael Fisher, Morgan Rowe and Saranjit Cheema — joined bowlers from unions and union-side labour firms, among other supporters, to help raise funds for these important initiatives.

On September 28, 2016, James Cameron will present at an Optimum Talent Lunch and Learn session titled “Has Terminating an Employee Without Cause Become More Difficult?”. The program will address the recent Supreme Court decision in Wilson v Atomic Energy as well as the proposed amendments to Ontario’s Employment Standard Act regarding the need for “cause” and the possibility of reinstatement for wrongfully terminated employees. 

More information about the program can be found here.

In a decision delivered from the bench on November 8, 2016, the Federal Court of Appeal affirmed a decision of the Canadian Human Rights Tribunal that Transport Canada discriminated against Chris Hughes in a job competition because he was a person with a mental health disability. After attending an oral interview, the hiring panel asked for oral references. Mr. Hughes told the chair of the hiring panel that it was difficult for him to get references from past employers in the federal public service, notwithstanding positive performance appraisals from those employers, because he was a whistleblower who had been involved in litigation with the employers for discrimination on the basis of his disability. Mr. Hughes asked the hiring panel to consider his performance appraisals in lieu of references, and while the panel initially accepted this material from him, it was not satisfied that is was an acceptable substitute for oral references. The Tribunal found, however, that the positive performance appraisals in fact confirmed Mr. Hughes was qualified for the position, and the hiring panel’s knowledge of his disability was a factor in its decision to reject his candidacy.

Transport Canada applied for judicial review of the Tribunal’s decision and, last year, the Federal Court disagreed with the Tribunal’s finding and set the decision aside. In reversing that decision, the Federal Court of Appeal found that the Federal Court re-weighed the evidence before the Tribunal and effectively re-decided the case, even though there was more than ample evidence to support the Tribunal’s key findings. This included evidence that the chair of the hiring panel knew of Mr. Hughes’ disability before deciding he was unqualified for the job, that a document favourable to Mr. Hughes had been altered by the employer, and that the chair of the hiring panel disregarded the accepted human resources practice of considering written material in lieu of reference in favour of verbal references. On that basis, the Federal Court of Appeal concluded the Tribunal’s decision was reasonable.

Mr. Hughes was represented by David Yazbeck and Michael Fisher of RavenLaw.

David Yazbeck recently spoke with the Canadian Bar Association’s National magazine regarding reform of the Canadian Human Rights Tribunal.

In his interview, David recommended an end to the federal system’s current two-step screening process for dealing with human rights complaints and the creation of a direct access model, like the one used in Ontario. He also commented on the importance of appointing members to the Tribunal who have expertise in and sensitivity to human rights matters.

On November 30, 2016, Morgan Rowe will present at the 2nd Annual Council of Canadians with Disabilities Conference. This year’s topic is “Strategies for Competent and Ethical Disability Law Advocacy.” Morgan will be presenting on issues related to inclusive legal services and accommodating clients with disabilities.

CCD is a national human rights organization of people with disabilities working for an inclusive and accessible Canada.

More information regarding the conference can be found here.