Tribunals cause for Employers concern
Author: Daniel A. Lublin
Provincial Human rights Tribunals sometimes get it wrong
Canadian employers have historically taken an ignorant view of human rights tribunals and their often extraordinary decisions. But that may be quickly changing. Because of sweeping changes to human rights legislation and left-leaning adjudicators directed to interpret remedial legislation, such as human rights laws, in a broad and inclusive manner, employers should be very concerned. Here are some of the reasons why.
Broadcasting cases: when Jessica Maciel was fired from a hair salon after disclosing she was pregnant, the Ontario Human Rights Tribunal found her termination was due to her pregnancy. She was awarded $35,000 for lost wages, benefits and “punitive” damages.
The decision, while not novel, should give employers pause for two reasons. First, the Human Rights Legal Support Centre, a government-sponsored program that argues cases of discrimination on behalf of employees, sent out a mass press release broadcasting the decision. Employers rarely had to concern themselves with negative public scrutiny arising from seeing their names widely broadcast on the wrong side of a press release – until now.
Second, the broad panoply of potential damage awards for human rights violations considerably increases the scope and unpredictability of human rights litigation before provincial tribunals. Despite having worked for only one day, Maciel was awarded damages with little or no relationship to her actual losses. It is no wonder so many employees choose to claim damages before provincial tribunals instead taking their chances in the courts.
Cost awards: In civil court cases, the losing party pays a component of the winner’s legal costs and cases cannot be summarily withdrawn without paying costs to the other side. Both rules deter frivolous or vexatious lawsuits from proceeding. But this is not so in the human rights regime, where employers must generally pay their own legal costs, no matter what the outcome. Employers are forced to settle many unmeritorious cases simply to avoid escalating legal fees.
Further, in Ontario, the aforementioned Legal Support Centre often advances cases on behalf of employees, without charging them a dime. Those claimants who can afford lawyers can opt to fire them and then qualify for free representation from the Centre.
Assumed jurisdiction: The most ridiculous aspect of Canadian human rights laws is that the tribunals often assume their jurisdiction to hear quasi-discriminatory matters before a hearing to determine whether that jurisdiction even exists. In B.C., the Tribunal is currently hearing the case of Lorna Pardy, a lesbian who accused a comedian of discriminating against her at a nightclub, before a hearing takes place establishing the Tribunal’s jurisdiction. It appears the Tribunal has it backwards.