Human Rights Damages
The Ontario Human Rights Tribunal has the jurisdiction to order human rights damages. A recent human rights case may discourage employees from filing a complaint under the Ontario Human Rights Code (Code) however it is a cautionary tale for employers.
The Claim: The City of Toronto Fire Service withdrew a conditional offer of employment to Robert Davis when it learned of a prior knee injury. The City claimed Mr. Davis knowingly failed to disclose the true state of his medical history and that he had a prior knee injury resulting in severe osteoarthritis. The City claimed this resulted in a breach of trust that warranted the withdrawal of the conditional offer of employment. Further, the City claimed Mr. Davis’ medical condition raised a significant safety concern, which it was entitled to take into account in its decision not to hire him. Mr. Davis filed a complaint alleging the job offer was revoked because of his disability or a perceived disability.
The Time from Complaint to Decision: The events at the heart of the complaint occurred in 1999 and 2000. The complaint was filed with the Ontario Human Rights Commission in December 2000. The first 9 days of hearing took place in October and November of 2006. The next 21 days of hearing ended in September 2009. The Ontario Human Rights Tribunal (Tribunal) released the decision on April 21, 2011.
The Decision: The Tribunal concluded that (i) the City discriminated against the complainant when it denied him employment as a firefighter at least partly because of a disability or perceived disability; and, (ii) Mr. Davis’ lack of full disclosure during the hiring process would have independently led the City to refuse him employment.
The Remedy: The City was ordered to pay Mr. Davis $10,000 for the injury to dignity arising out of the discrimination
Lessons to be learned
1. If an employee or a job applicant files a complaint with the Tribunal then the time and expense associated with defending the claim can be staggering. To reduce the prospect of such a claim, we strongly recommend that most employers introduce an internal human rights policy which contains an internal complaint procedure.
2. If a complaint is filed under the Code then we generally recommend that the employer agree to mediation and try to settle the case at mediation. The time and cost associated with a complaint increases exponentially after the mediation.
3. The cost of proceeding to a hearing before the Tribunal can be significant. Imagine the legal costs for a 30 day hearing. The employer must generally incur its own legal costs even if the complaint is dismissed.
If you have questions about your organizations obligations under the Code, or you want to introduce a human rights policy at your workplace, please email us at [email protected] or call us at 1-888-640-1728.
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