May 7, 2020

Over the past few years, courts, human rights tribunals, and labour arbitrators across Canada have been releasing a series of groundbreaking remedial awards. Are damages on the rise? What lessons do these awards offer to workplace parties? In this session, experienced advocates will highlight emerging remedial trends and provide guidance on preventing behaviour that leads to headline-worthy awards.

  • What are some recent examples of significant damage awards for injury to dignity, feelings, and self-respect from courts, human rights tribunals, and arbitrators? Are there any common features present in these cases — either in terms of the type of conduct sanctioned or the harms suffered by the individuals compensated — that may shed light on the damages awarded?
  • What are the key recent decisions involving significant awards for aggravated or moral damages? Are plaintiffs required to lead evidence demonstrating that they suffered actual harm as a result of the manner of dismissal, or can an employer’s conduct in itself be sufficient to justify these damages?
  • Is there a growing trend in favour of awarding damages for failing to investigate human rights complaints or for failing to conduct an adequate investigation?
  • Has recent caselaw changed the perception that high punitive damage awards are inappropriate? Are there general principles that courts follow when deciding whether to award these damages and in fixing the appropriate amount?
  • Are human rights tribunals increasingly ordering reinstatement as a remedy? Are awards of compensation in lieu of reinstatement becoming more common at arbitration? When are arbitrators likely to make such awards, and how do they calculate an appropriate quantum of damages to compensate for the loss of unionized employment?
  • What factors do arbitrators consider in assessing whether to order relocation of a manager or employee? What are some examples of remedies that have been awarded as an alternative to relocation?
  • What lessons emerge from recent awards? What conduct should employers avoid in order to lessen the risk of becoming the subject of an extraordinary award?