Civil Remedy for Human Rights – A Legal First

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A London court has awarded human rights damages in a wrongful dismissal action — the first such determination under provisions of the Ontario Human Rights Code that were enacted in 2008. The decision found that temporary illnesses or injuries are considered disabilities under Ontario’s Human Rights Code. Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799 (CanLII), is the first decision in which the Superior Court has relied on s. 46.1, under which human rights claims can “piggyback” other civil claims.

The vast majority of such claims result in settlements.

Justice A. Duncan Grace awarded $20,000 in damages to Ms. Wilson, a certified general accountant. She had worked for Solis Mexican Foods Inc., for more than 16 months when she was terminated in May 2011. She received two weeks’ pay in lieu of notice. She alleged she was terminated at least in part because of an ongoing back ailment and that her rights under the Human Rights Code were infringed.

Section 46.1(1) of the Code provides:

    If in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I [of the Code] of another party to the proceeding, the court may make either of the following orders, or both:

    1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

    2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

Section 46.1(2) qualifies this right, stipulating that:

    “Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I [of the Code].”

Some see the Wilson decision as the leading edge of an increase in similarly based claims. Proceedings under this cause of action are conducted under the summary trial procedure of the simplified rules. Cases can be heard in a streamlined way.

In Wilson, the court also held that temporary illnesses or injuries are considered disabilities under the Code and that employers can’t insist on a full recovery before an employee returns to work. Disability should play “no role whatsoever” in terminations; if it plays even a minor role, that establishes a prima facie discrimination basis in civil human rights claims, as it does at tribunals. Available remedies include damages for loss of employment, reasonable notice damages and reinstatement.

Related Cases and Information:

    Stokes v. St. Clair College, 2010 ONSC 2133
    Ontario Superior Court found that a s. 46.1 claim did not have to relate to the civil wrong basis for a claim. Section 46.1(2) requires that there be a wrong, not that it be related to the human rights claim.
    Anderson v. Tasco Distributors, 2011 ONSC 269
    In this case, the court found that, in enacting s. 46.1, the legislature intended to override case law predating the 2008 Code amendments. The notable case of Seneca College v. Bhadauria, 1981 CanLII 29 (SCC) had been raised in a motion to dismiss the claim. The Superior Court found that a civil wrong claim separate from the human rights claim, brings the matter within the jurisdiction of the civil courts.
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