Canadian HR Reporter

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Experience the benefits • Prepare winning grievance arbitrations and labour board applications • Successfully negotiate favourable collective agreements • Stay up to date on the latest labour-related decisions, industrial relations and economic news Legal content that is labour focused, not labour intensive Introducing LabourSource™ on WestlawNext® Canada See the LabourSource advantage View a demo at westlawnextcanada.com/laboursource 00224EP-A47770 $15,000 to the range of $20,000 to $30,000. "With anything in the common law where it builds on cases over time, I think there's been a grow- ing confidence or willingness to award increasing amounts. As to whether that's a reflection of in- flation or whatever it may be, I'm not sure that it's that, but there has definitely been a willingness by tribunals to award more." e Presteve case is more likely to be a one-off, said Frank Port- man, an associate at Stringer Management Lawyers in Toronto, adding the $150,000 general dam- ages doubled the previous high for any sort of discrimination before Ontario's tribunal. And the tribunal went out of its way to point out how exceptional the facts of the case were, being the worst it had ever seen, he said. "We'll see whether or not that becomes a trend," he said. "I know that, in general, human rights damages have been climbing. For a long time, there was sort of this informal bracket, you'd get between $25,000 and $40,000 in general damages for the worst kind of offences." The "Pinto report" in 2012, looking at Ontario's human rights system, was also was a fac- tor in saying awards were not high enough, said Portman. "I didn't see anything in Pre- steve that suggested this should be as high as the damages go, that 'We're only awarding this because this is such an exceptional factual situation,' so I think that there's certainly the potential for that to act more as magnet for the upper end of human rights damages, rather than act as more of a cap." Another possible reason for the rising damages is a societal shift around harassment, he said. "As a society, we're starting to understand more about some of the long-term, pernicious effects that this sort of behaviour can have." With the Presteve case, the facts were so extreme, they brought on that type of quantum, said Doug MacLeod, principal of MacLeod Law Firm in Toronto. The de- cision also listed prior damage awards and "there are a lot in the $30 to $40,000 range that…. most people would describe them as quite egregious," he said. "If peo- ple are now being told the high water mark is $150,000 not $30 or $40 (000), then people may look more seriously at actually filing an application." It's hard to say if that means more employers will face more claims but it'll be interesting to see what other adjudicators do with sexual harassment and sexual as- sault, said MacLeod. Tribunal versus court e Silvera case is a pretty impor- tant decision because now em- ployees have to decide whether they are going to the human rights tribunal, where they can go for free, or go to court and get poten- tially much higher damages, said MacLeod. "If you look at what happened in the $150,000 case versus the $300,000 case, the $150,000 case was much, much, much worse sexual assault and even though it was the highest damage award by three times at the commission, it was still half of the other one," he said. "So… lawyers who would have gone under the code in the past, under sexual harassment — this $300,000 case will give them pause and maybe think, 'Well, maybe we should go the court route instead.'" More and more of these sexual harassment and general human rights-related termination cases are being litigated in the courts, said Portman. e tribunal has a much more circumscribed ability to award damages, so it's interest- ing to see this crossover, he said. "There's a number of these claims here, punitive damages awards the human rights tribunal can't grant, family law act damag- es, and these are things that… you wouldn't be seeing handed out in these kinds of cases just because of the simple fact the tribunal lacked the jurisdiction to do so." A provision allowing the court to award general damages has ex- isted since 2008, said Portman. "But, up until 2013, there actu- ally hadn't been a reported case in which these damages were award- ed and now, in the last year-and-a- half or so, we've seen four or five cases; they've all been wrongful dismissals in which there's been an aspect of human rights and the courts have been awarding these general damages." Either way, employers are go- ing to have to spend time speak- ing to the individuals involved and building and defending their case, said Willetts. "e reality for the employer is going to be similar, regardless of whether it's in civil court or a hu- man rights tribunal." Lessons for employers ere's not an employer in the province that would condone this sort of harassment, said Portman. "But this really does under- line the importance of having, especially if you are in a situa- tion where you have (vulnerable) workers... it's important for em- ployers to have strong policies in place and to make sure that their employees know how to access those programs so that these situ- ations can get resolved before they get to this extreme stage." It's also important for employ- ers to have a proper complaint process, so people know where they can go if they've been ha- rassed, said MacLeod. "It's one thing to have a state- ment saying, 'We don't tolerate (this) and people will be disci- plined,' but unless you give them the name of a person they can complain to, and as long as you tell them that their complaint will be taken seriously and… the infor- mation will be kept confidential… there will be no reprisal for bring- ing a complaint forward, they're going to be less likely to do so." And once an employer is faced with these kind of charges, the legal system will be looking at how it responded, according to Portman. "Were they prepared for this situation or did they have this vulnerable employee and they just brushed her aside without really giving her full vindication through their internal processes?" It's also a good idea for the employer to actually show up in court or before the tribunal. In Silvera, the employer failed to do so, so there were no witnesses and there was no cross-examination of the plaintiff or her doctor, said MacLeod. "e fact the employer didn't show up, that's a big factor as to why the quantum was so high." Courts taking on more human rights DAMAGES < pg. 1 Now employees have to decide whether they are going to the tribunal or to court.

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