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Employment & Labour, Human Rights

OCA decision may spark increase in human rights court cases

The Ontario Court of Appeal has handed down one of the largest awards from a court for human rights damages after a Mississauga company was found to have launched a “campaign of abuse” designed to force a deaf woman’s resignation, says Toronto employment and human rights lawyer Nicole Simes.

“The decisions over the last few years have typically been around the $20,000 range for human rights damages and the trial level decision in this case was also $20,000. The Court of Appeal doubled it to $40,000," she tells AdvocateDaily.com

The OCA in its decision, Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520, increased the original total amount of damages awarded to Vicky Strudwick by about $100,000.

The decision comes four years after Strudwick sued her employer for damages for wrongful dismissal and related claims arising from the abuse she suffered at work, including public belittling, harassing and isolating her in ways relating to her disability. 

A lower court ruling awarded her $113,782.79 plus $40,000 in costs. The OCA increased the amount of $246,049.92 for breaches to the woman's human rights, aggravated damages, intentional infliction of mental suffering and punitive damages.

Simes, a lawyer with MacLeod Law Firm, says the OCA decision may result in more human rights cases going to the courts instead of the Human Rights Tribunal of Ontario. 

“Employees who have experienced harassment, bullying or discrimination in the workplace may be more likely to bring those matters to court rather than to the Tribunal,” she says. 

People are often faced with the choice of taking their complaint to either a Human Rights Tribunal or to court, Simes explains. She says this decision to increase the damage award might bolster the reasons to take a matter to court.

“This is a positive decision as it demonstrates that judges will assess the facts and award appropriate remedies,” she says. 

Simes says the case raises a number of important legal issues and notes it is rare for the Court of Appeal to increase damages. 

“Usually on appeal, especially those cases involving punitive damages or aggravated damages coming from a jury trial award, the court lowers the award,” she says. 

Simes says the areas of damages for which the court has awarded this woman money are similar. 

“They have awarded damages for breaches of her human rights, aggravated damages, intentional infliction of mental suffering and punitive damages,” she says. “These are legally distinct but they are all related and arise from the same conduct. 

“It shows if there is egregious conduct like this and the employee proceeds to court, there is a possibility for a larger recovery. The courts can consider these different types of damages whereas at a Human Rights Tribunal you can only plead a breach of the Human Rights Code,” she says. 

Simes says the case is also an important one for employers and highlights the importance of taking litigation seriously. 

“This case has a history of costs and motions related to the fact the employer did not defend the action when they originally received it,” she says. “At the lower court level, the employer was noted in default, and was not permitted to participate further in the process or give evidence.”

Simes says employers need to pay attention if they receive a statement of claim from an employee and they should get legal advice before responding. 

She also advises companies that have employees with disabilities to seek legal advice to ensure they're complying with their responsibilities.

"When employers have employees with disabilities, it is important to obtain legal counsel to ensure the employer is meeting its obligations," she says. 

 

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