Dignity and Dollars: Damages and other remedies for harassment and discrimination

Are remedies for human rights violations and harassment on the rise? Can employees expect greater or different remedies from arbitrators, courts or human rights tribunals? In this session, experts will compare the remedial powers of tribunals, courts and arbitrators as illustrated by recent decisions and legislative developments. Our experts will also discuss emerging trends in the types of remedies and quantum of damages awarded to victims of harassment and discrimination.

• Arbitrators versus human rights tribunals: What, if any, are the fundamental differences between the authority of arbitrators and human rights tribunals to award remedies for human rights violations? Do arbitrators commonly award damages for injury to dignity, feelings and self-respect? How does this compare with what human rights tribunals award? How will the decisions of tribunals affect the quantum of damages awarded by arbitrators, and vice versa? Compared with human rights tribunals, what jurisdiction do arbitrators have to award systemic and public interest remedies for human rights violations? Are arbitrators well-suited to ordering systemic and public interest remedies in workplaces and overseeing their implementation? Are human rights tribunals better suited? Can arbitrators and human rights tribunals award costs to unsuccessful parties and how likely are they to make such awards?
• Human rights tribunals and the courts: Do courts have the authority to award monetary damages for Human Rights Code violations in wrongful dismissal actions? How does this authority vary between provinces? Do the courts have jurisdiction to reinstate employees into their jobs and, if so, are they likely to do so? Will the decision in Wilson v. Solis Mexican Foods Inc. likely increase the number of discrimination claims that are brought in the courts as opposed to the Tribunal? What impact will tribunal and arbitral remedial awards have on court-ordered remedies and vice versa? What, if any, may be the remedial advantages to bringing human rights complaints before the courts rather than the Tribunal? Is an award of costs against the unsuccessful party more likely to be awarded in court than in other forums? Are human rights tribunals bound by common law tests regarding mitigation of damages? If not, what different considerations will be applied?
• Injury to dignity remedies on the rise? What was the reasoning behind the recommended increase in damage awards contained in the Pinto Report, released by the Ontario government in 2012? To what extent have those recommendations been followed? Have injury to dignity awards increased more in some Canadian jurisdictions than others and how can the variation be explained? Have hurt feelings and injury to dignity awards increased in some areas, such as sexual harassment, more than others, such as disability discrimination?
• Damages versus reinstatement: How far will tribunals go to “make whole” employees who have been harassed/suffered discrimination? Does the decision in Fair v. Hamilton-Wentworth District School Board to reinstate an employee nine years after termination signal a trend towards reinstatement at the human rights tribunal? Why is reinstatement far more common in arbitration than in human rights tribunal or court proceedings?
• Reprisal: Are damages for reprisal as significant as remedies for discrimination based on a prohibited ground? Will victims of reprisal be awarded lower damages if their underlying complaint is unsubstantiated?
• Aggravated and punitive damages: What scope is there for aggravated and punitive damages at arbitration, and before human rights tribunals and the courts?
• Remedies for bullying and harassment: What remedies are available to unionized and non-unionized employees if they are being bullied or harassed at work? If an employee is forced to resign due to a poisoned work environment? Can employees seek redress for bullying and harassment, and for a poisoned work environment, under occupational health and safety law, workers’ compensation law or in the courts? If recourse for harassment is available through arbitration, will the courts or human rights tribunals decline jurisdiction? What remedies have arbitrators awarded?