Many practitioners have felt that damages under the Ontario Humans Right Code are not as significant as they should be. In the past few years, however, we have seen a trend toward increased damages in several areas of law, including human rights. In last year’s Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520, particularly egregious conduct by an employer toward a disabled employee provided the Ontario Court of Appeal with an opportunity to award one of the highest amounts ever for “injury to dignity, feelings, and self-respect” for breach of the employee’s rights under the Code.
The wrongful dismissal action arose out of the long-term employment relationship between the appellant, Vicky Strudwick, and the respondent, Applied Consumer and Clinical Evaluations Inc., a business that recruits people to participate in focus groups. Strudwick had worked for Applied Consumer for more than fifteen years when she was suddenly rendered completely deaf, most as a result of a virus. Almost immediately thereafter, the General Manager of Applied Consumer, together with Strudwick’s immediate supervisor, commenced what the Court of Appeal deemed a “campaign of abuse” against her, designed to force her resignation. In addition to publically belittling, harassing and isolating Strudwick in ways relating to her disability, Applied Consumer denied Strudwick any accommodation for her disability and took specific steps to increase the difficulties she faced as a result of her disability. The General Manager ultimately fired Strudwick for a “stunt” she allegedly pulled at a company event.
Strudwick sued Applied Consumer for damages for wrongful dismissal and related claims arising out of the abuse.
The motion judge granted judgment in Strudwick’s favour in the aggregate amount of $113,782.79, including pre-judgment interest, plus $40,000 in costs.
Strudwick appealed the damages assessment on the basis that, given Applied Consumer’s particularly shameful conduct, the motion judge erred by assessing damages that were too low.
The Court of Appeal allowed Strudwick’s appeal, increasing the award to $246,049.92. While it found that the trial judge did not err in his assessment of damages for wrongful dismissal, the Court held that the judge did err in his assessment of damages under section 46.1 of the Ontario Human Rights Code, for intentional infliction of mental suffering, and aggravated damages and punitive damages.
Strudwick represents a change from past cases, such as Keays v. Honda Canada Inc. and Boucher v. Wal-Mart Canada Corp., where substantial awards were cut down on appeal. This time, the Court of Appeal doubled the initial award, suggesting that courts may be willing to clearly express their disapproval of egregious human rights violations in the workplace. As a result, both Employers and Employees should be cognisant of this change with the Courts and ensure that they seek Employment Law advice to avoid any unnecessary litigation.
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