New SCOPE contributor Patrick Kelly outlines the way “intangible loss” is calculated at the Ontario Human Rights Tribunal, using McDonald v. Mid-Huron Roofing as a reference.
The art of quantifying intangible losses at the Human Rights Tribunal of Ontario (HRTO) can be confusing and appear futile. How much value can one reasonably put on loss of self-respect, dignity and confidence? Adjudicator Judith Keene brought some clarity to this issue in McDonald v. Mid-Huron Roofing, 2009 HRTO 1306 (CanLII).
The applicant, Harry McDonald, was hired by Mid-Huron Roofing in May, 2008 and subsequently dismissed in October, 2008.
At the time of hiring or shortly after, Mr. McDonald advised the company that his spouse, Meghan Hickmont, was pregnant and experiencing serious complications. During the relevant time period, Hickmont, according to her testimony, had several medical appointments. She attended many on her own but wished her spouse to be with her when she expected “bad news.”
McDonald attended several appointments, taking unpaid full or part days off from work. However, before taking a week off in September for the birth, McDonald was told not to take any more time off. On October 6, Hickmont had a scheduled appointment for the baby but suffered a gall bladder attack. She called McDonald at work, to care for the child. He advised his supervisor of the medical emergency and was told if he was not back within 20 minutes he would have no job.
McDonald did not return to the job.
The Tribunal found Mid-Huron had violated section 11 of the Ontario Human Rights Code, which states:
(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.
(2) The Commission, the Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
The requirement in question was that of taking no more than 20 minutes on the day he was fired. It is interesting to note that discrimination is not only defined by what one party does to another but also when everyone is treated the same without recognition of special circumstances of a party.
A previous ruling had set the parameters on what can be considered intangible loss. In Sanford v. Koop 2005 HRTO 53, the adjudicator summarized the following factors frequently used in assessing the appropriate quantum of general damages for the violation of the right to be free from discrimination:
• 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
In quantifying damages, Keene states: “Quantifying intangible loss and distress is a difficult exercise.” And further, “The Tribunal has recognised that it 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.”
The tribunal ordered the respondent to pay $20,000 in general damages for Code violations.
The intangible loss evolution continues. Numerous decisions had previously established an upper limit of $10,000.