Author: Daniel A. Lublin
Since the mid-90’s, dissatisfied litigants of Ontario’s human rights regime have bemoaned its apparent shortcomings. A blend of limitations, owing their origins to the faulty composition of Ontario’s current human rights legislation, have ultimately left discrimination complainants without adequate redress. Complainants before the Human Rights Commission wait years before a resolution is reached, or imposed. Conversely, since the Commission lacks adequate discretion to immediately dismiss unmeritorious complaints, innocent corporate respondents are burdened with defending marginal complaints.
Referring to a “broken” human rights regime, Ontario Attorney General Michael Bryant announced the passage of new legislation, intended to repair the system. The way Ontario adjudicates human rights and wrongful dismissal matters will face inevitable transformation.
- Victims of discrimination will have access to greater remedies and compensation: At a special Law Society conference on employment law that I recently attended, the main theme was the enlargement of damage awards for the dismissed employee. If a human rights complaint is brought as part of a wrongful dismissal action, courts will soon have broad powers to award extensive non-monetary human rights remedies, including reinstatement, where they previously were limited to taking violations into account only when awarding damages. Therefore, if a victim of discrimination took two years to find another job, based on the new human rights principles, a judge could award her two years’ wages, and her legal fees, whereas that same individual may previously only have been entitled to a few months’ pay. In my practice, if there is even a semblance of discrimination, I’ll be recommending that dismissed employees pursue their claims in court.
- Under the new system, complainants suing for human rights allegations in the courts will be able to take advantage of pre-trial discovery procedures, in order to assess and advance their claims. An individual alleging discrimination in the context of his wrongful dismissal will be able to examine, for discovery, the corporate respondent’s documents and key employees, forcing an employer to turn over incriminating evidence. These measures will be taken before a scintilla of the complaint is ever proven.
- The remedial powers of the Human Rights Commission and the Tribunal, which adjudicates only human rights matters, will become more generous: A Tribunal that concludes that discrimination has occurred will be able to award monetary compensation in excess of the formerly criticized $10,000 cap; restitution other than compensation, such as reinstatement; and, not least, any other direction that, in the opinion of the Tribunal, will promote human rights compliance. The Tribunal will even hold the authority to make orders where the complainant has not even sought that specific relief.
- The Commission’s investigative powers will also be broadened, allowing political motivations to enter the fray. The Commission will be allowed to initiate review and inquiries into incidents of “tension and conflict” in a community, institution, industry or sector of the economy, as well as, authority to initiate or assist in cases where it is of the opinion that it is in the public interest to do so, which will invariably influence the direction of human rights litigation.
- Finally, the reforms have even proposed that no human rights complaint can be finally disposed of without affording an opportunity for the complainant to make oral submissions, leaving many employee-side lawyers eager to plead their case.
The potential for court-ordered human rights awards will inevitably change the landscape of litigation, and thus, the gamble of having a case heard at trial. Employers should be ever more willing to trade compensation for an assurance that their name won’t end up in the news.