Assessing Damages (Human Rights)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-24
CLNP Page ID:	1832
Page Categories:	Human Rights
Citation:	Assessing Damages (Human Rights), CLNP 1832, <5H>, retrieved on 2024-11-24
Editor:	MKent
Last Updated:	2022/08/10

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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).

(...)

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.

(...)

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

Hughes v. 1308581 Ontario, 2009 HRTO 341 (CanLII)

[83] In two recent cases, also dealing with complaints argued under the former damages section in the Code but decided under the current s. 45.2, the Tribunal referenced § 4 of the decision of the Board of Inquiry in Ketola v. Value Propane Inc., [2002] O.H.R.B.I.D. No. 14 (QL) [ 2002 CanLII 46511 (ON HRT), 44 C.H.R.R. D/37] in connection with its assessment of damages. The Tribunal stated that its earlier decision was valuable in its identification of relevant criteria as well as the relationship between a complainant's inherent right to be free from discrimination and damages for mental anguish (see Grzesiak v. DOT Benefits, 2008 HRTO 206 (CanLII) [reported 65 C.H.R.R. D/65] at § 104; and Wall v. Lippé Group, 2008 HRTO 50 (CanLII) [reported 64 C.H.R.R. D/26] at § 91). I also find it useful to consider the criteria set out in § 4 of Ketola v. Value Propane Inc., supra, and those listed at § 35 and 38 in Sanford v. Koop, 2005 HRTO 53 (CanLII) [reported 55 C.H.R.R. D/102] in determining the appropriate level of damages to be awarded for the loss arising out of the infringements experienced by the complainant in this complaint.

Ketola v. Value Propane Inc., 2002 CanLII 46511 (ON HRT)

Loss Arising Out of the Infringement Including Mental Anguish

In making such an award, the Board considers the following factors: the humiliation; the hurt feelings; the loss of dignity and self-respect of the Complainant; the vulnerability of the Complainant; and the seriousness, frequency and duration of the offensive treatment. The emotional stress suffered by the Complainant is only properly considered when making an award for the mental anguish component of the damages.

In the instant case, the Board also considers the following in its quantification of damages for loss arising out of the infringement of the right: the seriousness of the charge of theft and the stigma attached thereto – the attack on Mr. Ketola’s basic character; the impact in terms of gossip in a small town environment where the Complainant and his family live; the manner in which he was dismissed; the timing of the termination - Mr. Ketola was suffering from a debilitating fatal disease; the financial implications - Mr. Ketola was the only “breadwinner” for the family and his contract with Value was his sole source of income. Furthermore, the discriminatory acts had several components and were over a period of time: i.e., the removal of the telephone on two occasions; the reduction of work days; the hiring of others to do some of his tasks; the termination on January 18, 2000; and the failure to investigate further or reconsider thereafter.

(...)

The Board is satisfied, without having heard medical expert evidence, that the actions of the Respondents exacerbated the stress and anxiety that Mr. Ketola experienced. Obviously, the Respondents are not responsible for Mr. Ketola having acquired ALS and the degenerative, fatal aspect of this disease. However, their actions worsened his emotional and physical state.

“Mental Anguish”

This head of damages is only triggered where the violation was engaged in wilfully or recklessly by a respondent and resulted in mental anguish to a complainant. While aggravating in nature, they are not meant to be punitive. This type of award takes into account intangible injuries.

The Divisional Court has defined “wilfully” to require both that the conduct be intentional and the infringement of the complainant’s rights be itself the purpose of the conduct: York Condominium Corporation No. 216 v. Dudnik (1991), 1991 CanLII 7224 (ON SC), 3 O.R. (3d) 360, at 376. Professor Cumming, then sitting as an ad hoc Board, defined “recklessly” as conduct, which is “such as to evince disregard of or indifference to its consequences, that is, the conduct is done with rashness or heedlessness; it is done wantonly”, without regard for the possible injurious impact on the complainant: Cameron v. Nel-Gor Castle Nursing Home (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170, at D/2198.

The Board adopts the analysis of Vice-Chair DeGuire of what constitutes “mental anguish” in Fuller v. Daoud, [2001] O.H.R.B.I.D. No. 19, at para. 66:

Mental [A]nguish suggests a relatively high degree of mental pain and distress. It is more than mere disappointment, angry feelings, worries, resentment or embarrassment. Yet, it necessarily includes all of the foregoing. It does, however, include mental sensation of pain resulting from painful emotions such as grief, severe disappoint[ment], indignation, wounded pride, shame, despair or public humiliation: (see Black’s Law Dictionary, 6th ed.). Mental anguish is a subjective suffering that does not require medical proof.

The Board considers the following factors in its award for mental anguish: the impact, past and ongoing, of the acts on the Complainant’s emotional state; the vulnerability of the Complainant; and the frequency and intensity of the conduct. There is no requirement that medical evidence be given to substantiate this claim, although it may be useful to the Board.

Passmore v. Illumiti Inc., 2018 HRTO 1595 (CanLII)

[8] I agree with the respondent that the Tribunal should not order a separate award of compensation for “mental distress or anguish.” However, the extent to which the applicant experienced mental distress as a result of the breach of her Code rights can have an impact on the amount an applicant might be awarded as compensation for the injury to her dignity, feelings and self-respect. See, Tonoukouin v. Canadian Centre for Victims of Torture, 2017 HRTO 1157 at para 14; and Clennon v. Toronto East General Hospital, 2010 HRTO 506 paragraph 33.

[9] The Court of Appeal for Ontario addressed the considerations to be made when determining compensation for Code violations following the termination of employment in Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520 (“Strudwick”).

[10] In Strudwick, above, the Court at para. 57 referred to the Divisional Court’s decision in Lane v. ADGA Group Consultants Inc., 2008 CanLII 39605 (ON SCDC), (“Lane”) where the Court stated at para. 154:

Among the factors that Tribunals should consider when awarding general damages are humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant; and the seriousness of the offensive treatment. [Citations omitted.]

[11] The Tribunal expanded on the considerations noted in Lane, above, in its decision in Arunachalam v. Best Buy Canada, 2010 HRTO 1880 (“Arunachalam”). In particular, the Tribunal recognized the need to objectively consider the seriousness of the respondent’s conduct and the impact the Code violation had on the applicant. At paras. 53 - 54 the Tribunal stated, as follows:

The first criterion recognizes that injury to dignity, feelings, and self-respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.

The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34 - 38.

[12] In Chittle v. 1056263 Ontario Inc., 2013 HRTO 1261 the Tribunal awarded $30,000 for compensation for loss of dignity, feelings and self-respect. The Tribunal commented on the nature of an order for compensation for loss of dignity, feelings and self-respect at paras. 114 - 116, as follows:

A compensatory order is not a punitive order, but consideration of the actions of the respondent cannot be avoided in determining whether dignity was violated and how. As Professor Denise Réaume notes in her wide-ranging discussion of the concept of human dignity, “violating dignity involves conveying the message that some are of lesser worth than others” (Denise G. Réaume, “Discrimination and Dignity” in Faraday, Denike and Stephenson eds., Making Equality Rights Real (Toronto, Irwin Law Inc., 2006).