Labour Studies Index

Trends in Human Rights Damages: Courts, Statutory Tribunals and Labour Arbitration

Document type Article
Author Flaherty, Michelle
Journal Canadian Labour and Employment Law Journal
Volume 20
Date 2017
Pages 355-378

Abstract

In the employment context in Ontario, jurisdiction over human rights claims is now shared between the Human Rights Tribunal, the courts, and labour arbitra- tors. This paper compares human rights damages awarded by statutory tribunals, civil courts, and labour arbitrators in Ontario with a view to identifying trends and to understanding whether remedial outcomes are likely to vary depending on the litigant's choice of forum. After reviewing the statutory basis for the awarding of human rights damages, and the criteria which adjudicators have developed in quantifying the appropriate amount of compensation, the author turns to a detailed analysis of cases in which such damages were ordered by statutory tribunals, arbi- trators, and judges. The author finds that while decision-makers apply largely the same remedial principles in assessing damages, historically, the amount of monet- ary awards have varied considerably across fora. The author suggests, however, that the Ontario Court of Appeal's recent decision in Strudwick, explicitly adopt- ing the remedial principles articulated by the Human Rights Tribunal of Ontario and making a substantial award of damages, may promote greater consistency and predictability in the assessment of human rights damages.