Human rights remedies have taken on new significance in recent years, particularly following amendments to the Ontario Human Rights Code in 2008.

Where there is an allegation that termination of employment has been influenced by a protected human right, one question will often be whether the case should focus on a human rights complaint, or alternatively, to include a human rights allegation in the civil action. Ontario law is unique in allowing a human rights case by civil action where there is an accompanying civil claim such as a wrongful dismissal action.

There are many important differences in the manner of proving such a case and also in the substantive remedies which are allowed once a case is proven.

There are advantages and disadvantages of each type of case which must be carefully understood. The choice of remedy is often a difficult one and requires considerable expertise from legal counsel.

Proving a Human Rights Case

To succeed in a human rights case, the applicant must first show a “prima facie” case, one which will support a finding of liability, should the employer choose to call no evidence. The standard to show such a case is quite low. Relatively little affirmative evidence is required to past this hurdle.

A human rights case generally allows for “proof by inference” due to the fact that it is rare to see direct evidence by a company manifesting a human rights violation. An employer would be very unlikely to admit that a termination decision, for example, was made based on the age, religion, or gender of the employee. Also, it is sufficient to show that the alleged offensive action was merely influential to the action taken. It need not be the sole cause. This standard is very different from the method of proof in a normal civil action.

Human Rights Remedies

Should a case be proven, the Human Rights Tribunal or a civil court judge will be permitted to make awards of compensation for injured feelings, lost income, and reinstatement. In Ontario, there is an unusual provision which allows the Ontario government to terminate any contract with the company, given a finding of a violation.

The damages for injured feelings tend to be in the broad range of $5,000 to $50,000.

Most importantly, a claim for lost income is entirely different from a wrongful dismissal claim, which is based on the implied term of notice. The length of the employment relationship, the nature of the position held, age, and other factors which influence a wrongful dismissal notice claim have no impact on the lost income claim in a human rights case.

A lost income claim in a human rights case is based on the concept of “but-for”. That is, but for the adverse action, what would have happened to the employment relationship? Often this can allow for a potential claim through to the date of the hearing and even beyond, where reinstatement is not sought or allowed.

This has resulted in many very significant lost income awards far beyond, often many years beyond, what could be expected in a wrongful dismissal action.

One further consequence of this approach is that an employment contract which sets out a mandated severance payment, often to the employer’s advantage, is irrelevant.

Similarly, a stock option agreement often contains a term which denies the employee a claim for lost profits on the stock price following termination of employment. This typically will deny an employee a claim for financial loss in a wrongful dismissal claim.

However, this will have no impact in limiting a claim for such a loss in a human rights case. If the employee shows that his or her termination was influenced by a human rights violation, the remedy will restore his or her financial loss based on what would have happened, “but-for” the termination.

Situations That May Affect Damages

Where the employment relationship in question is governed by a contract which sets a fixed term, such as one year, this may be to the employer’s advantage as the employer would argue that the employment relationship would have ended in any event, regardless of the adverse conduct.

Similarly, the company may be able to prove that its business was destined to close for financial reasons, or the department in which the employee worked was set to close. If so, the lost income claim in human rights law will be limited to the date of closing. In a wrongful dismissal action, such events would be irrelevant.

In the above examples, the “but-for” concept operates to diminish the employee’s claim.

Differences in Process

Cases before the Human Rights Tribunal have no pre-trial discovery. In addition no costs are ordered in favour of the successful party or against the unsuccessful party. In a civil action the decision to settle or try the case is often strongly influenced by the issue of legal costs. This is not a factor at all in a human rights case. The standard of appeal from an order of the Tribunal presents a very high bar on the party seeking a review of the decision.

The limitation period for a human rights complaint is 12 months, whereas in a civil case, it is set at 2 years. This 2 year period applies also to a human rights case brought by civil action.

Complicated Issues Require Clear Advice

The law on this subject is complicated. If you have experienced adverse conduct at work, such as termination or demotion due to an apparent human rights issue, it is important to obtain legal advice quickly from competent employment law counsel.

If you are an employer facing a human rights case, we are ready to help.

Contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins. We regularly advise employees and employers on legal workplace issues. Contact us online or by phone at 416 364 9599 to schedule a consultation.