Dispelling the myth of the $10,000 cap

The Ontario Human Rights Commission can, and does, award more than $10,000 in cases it handles

Stuart Rudner
There is a common misperception in both the corporate and legal world that, in Ontario, the Human Rights Commission cannot award more than $10,000 to a complainant.

While it is true that damages awarded by the commission are generally lower than by Canadian courts (which are, in turn, generally lower than those awarded by American courts), the $10,000 “cap” is misunderstood. It is not a cap on the total amount of damages that can be awarded, but a cap on the damages for mental anguish associated with each violation. General damages for each violation are theoretically unlimited, although the commission has kept awards relatively low.

The Human Rights Code provides that:

“41. (1) Where the Tribunal, after a hearing, finds that a right of the complainant under Part I has been infringed and that the infringement is a contravention of section 9 by a party to the proceeding, the Tribunal may, by order,

...

(b) direct the party to make restitution, including monetary compensation, for loss arising out of the infringement, and, where the infringement has been engaged in wilfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish.”

According to the case law that has emerged, a complainant is entitled to two distinct types of damages for non-pecuniary losses:

•damages for mental anguish; and

•general damages arising out of the loss of dignity and self-respect resulting from a breach of the right to be free from discrimination and harassment.

General damages are capped by the code at $10,000. But the commission can, and does, award $10,000 for each violation. As a result the total value of a decision can be several times $10,000. The code does not cap the amount of damages that can be awarded as general damages, and awards of $15,000 and $25,000 have been made in recent years.

There are two ways in which the commission can make an award over $10,000:

•by finding multiple violations of the code, and awarding mental anguish damages up to $10,000 for each; and

•by awarding general damages, which are not capped, for each violation.

In the recent case of L.L.G. v. Sport Medic Inc. two complainants brought forward allegations of sexual harassment. Although both claims succeeded, one of the complainants was found to have suffered more significant mental anguish. The board of inquiry awarded that complainant $10,000 in general damages plus a further $15,000 for mental anguish. Combined with her loss of income of $70, the total value of the award was $25,070.

The L.L.G. case confirms that total awards can exceed $10,000. What is interesting is the passage, in the reasons of D.F. O’Leary, in which he commented on the fact he would have interpreted the code differently and concluded it did provide a maximum award of $10,000. But in light of the decision of the Divisional Court of Ontario in The Shelter Corporation et al. v. Ontario Human Rights Commission, he concluded he could make a larger award and chose to do so in L.L.G.

The Shelter Corporation case referred to by O’Leary rejected the previous line of cases, which accepted a $10,000 cap on general damages for human rights violations. Justice O’Driscoll held general damages were to compensate individuals for the loss of the right to be free from discrimination and for the victimization they have suffered. He found there should be no arbitrary maximum placed on such damages.

Other cases where damages greater than $10,000 have been awarded include Naraine v. Ford Motor Company of Canada and Arias v. Desai. In each of those cases the complainant was awarded $30,000 for combined general damages and mental anguish. In Curling v. Torimiro, a board of inquiry awarded the victim a total of $41,000. This amount included an award for mental anguish, as well as separate awards of general damages for each violation of the claimant’s rights.

To my knowledge this is the largest award to date in a human rights claim, although it is closely followed by Ketola v. Value Propane Inc., in which $40,000 was awarded for a violation of the code and a subsequent reprisal by the employer for the bringing of a claim.

In the grand scheme of things, the awards that are now being made to victims of human rights violations are still relatively small. They pale in comparison to damages awards that are made by the courts in other contexts, particularly where punitive damages are added. The mandate of the Human Rights Commission, however, is to remedy and not punish. As a result it does not have the authority to award punitive damages.

Nevertheless the new reality of human rights means violators are no longer facing a penalty of no more than $10,000 if they lose. Their exposure could be two, three or four times that amount. Presumably future cases will include even larger awards. Corporations should be aware of this, and lawyers should make it clear to their clients. Canadian victims of discrimination or harassment in Canada can collect significantly more than $10,000.

For more information see:

Naraine v. Ford Motor Co. of Canada, 2002 CarswellOnt 3428, 2002 CarswellOnt 3429 (S.C.C.)

Arias v. Desai, 2003 CarswellOnt 4038, 2003 HRTO 1 (Ont. Human Rights Trib.)

Curling v. Torimiro, 1999 CarswellOnt 5223 (Ont. Bd. of Inquiry)

Stuart Rudner practices civil litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672 or via email at srudner@millerthomson.ca.

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