Assessing Damages (Human Rights)

Sanford v. Koop, 2005 HRTO 53 (CanLII)

[34] The Commission asks that the Tribunal award $25,000 in respect of general damages. In support of its position, the Commission submits Tribunal jurisprudence has established the principle that there is an intrinsic value to the rights enumerated in the Code, and the infringement of those rights warrants the assessment of general damages in addition to an award for mental anguish (Entrop v. Imperial Oil Ltd. (No. 7) (1995), 1995 CanLII 18196 (ON HRT), 23 C.H.R.R. D/213 at § 50 (Ont. Bd.Inq.); aff'd (1998), 1998 CanLII 14954 (ON SC), 30 C.H.R.R. D/433 (Ont. Ct. (Gen.Div.)); rev'd in part on other grounds (2000), 2000 CanLII 16800 (ON CA), 37 C.H.R.R. D/481 (Ont. C.A.)). Further, it argues, there is no ceiling on general damage awards and in making such awards, the Tribunal should not set the quantum too low, since doing so would trivialize the social importance of the Code by effectively creating a "license fee" to discriminate ( Shelter Corp. v. Ontario (Human Rights Comm.) (2001), 2001 CanLII 28414 (ON SCDC), 39 C.H.R.R. D/111 at § 43 and 44 (Sup.Ct.), Gohm v. Domtar Inc. (No. 4) (1990), 1990 CanLII 12500 (ON HRT), 12 C.H.R.R. D/161 at § 126–27 (Ont. Bd.Inq.), Gibbons v. Sports Medic Inc. (2003), 2003 HRTO 26 (CanLII), 48 C.H.R.R. D/98 at § 49 and 50, Baylis-Flannery v. DeWilde (No. 2) (2003), 2003 HRTO 28 (CanLII), 48 C.H.R.R. D/197 at § 173 (H.R.T.O.)).

[35] The Commission provided a number of cases which set out the criteria to be used in assessing the appropriate quantum of general damages. These factors include:

• Humiliation experienced by the complainant

• Hurt feelings experienced by the complainant

• A complainant's loss of self-respect

• A complainant's loss of dignity

• A complainant's loss of self-esteem

• A complainant's loss of confidence

• The experience of victimization

• Vulnerability of the complainant

• The seriousness, frequency and duration of the offensive treatment

See: Baylis-Flannery v. DeWilde (No. 2), supra (total general damages of $35,000); Arias v. Desai (No. 2) (2003), 2003 HRTO 1 (CanLII), 45 C.H.R.R. D/308 (H.R.T.O.) (total general damages of $25,000); Curling v. Torimiro (No. 4) (2000), 2000 CanLII 20870 (ON HRT), 38 C.H.R.R. D/216 (Ont. Bd.Inq.) (total general damages of $21,000); Ketola v. Value Propane Inc. (No. 2) (2002), 2002 CanLII 46511 (ON HRT), 44 C.H.R.R. D/37 (Ont. Bd.Inq.) (total award of $20,000 for general damages and mental anguish); deSousa v. Gauthier (2002), 2002 CanLII 46506 (ON HRT), 43 C.H.R.R. D/128 (Ont. Bd.Inq.) (total award of $25,000 for general damages and mental anguish).

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Damages for Mental Anguish for the Reckless and Wilful Infringement of the Complainant's Rights

[37] Pursuant to s. 41(1)(b) of the Code, the Tribunal may award damages of up to $10,000 for mental anguish, injury to dignity, feelings and pride, where such infringement has been engaged in wilfully or recklessly.

[38] The Commission identified the factors used to assess mental anguish damages pursuant to s. 41(1)(b):

• The immediate impact of the discrimination and/or harassment on the complainant's emotional and/or physical health — e.g. distress during employment, episodes of crying, sleeplessness, fearfulness, inability to pursue or resume regular activities

• The ongoing impact of the discrimination and/or harassment on the complainant's emotional and/or physical health, i.e., impact on personal and professional life, lack of trust in employment relationships

• Vulnerability of the complainant — e.g., age

• Objections to the offensive conduct

• Knowledge on the part of the respondent that the conduct was not only unwelcome but viewed as harassment or discrimination

• Anxiety caused by the conduct

• Frequency and intensity of the conduct

See: Ketola v. Value Propane Inc. (No. 2), supra.

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Special Damages

[40] The Commission provided a detailed calculation of the wage and other monetary losses suffered by Ms. Sanford as a result of her loss of employment and the discriminatory treatment by the respondent. The affidavit of the complainant also provided a detailed account of her efforts to mitigate her losses. The Tribunal is satisfied that the evidence supports the claim, and awards special damages as follows:

• Lost Wages: $18,570

• Compensation for moving expenses: $666

• Medical Reports: $375