On June 30, 2008, the Ontario government amended the Ontario Human Rights Code (“the Code”) came into force that allow human rights damages under the Code to be dealt with either as civil claims before the courts or as applications before the Human Rights Tribunal of Ontario (HRTO). This change offered strategic flexibility and increased settlement options to victims of discrimination. It also reduced the complexity and expense of trying to settle concurrent proceedings.
However, despite the passage of 5 years since the amendments took effect, there have been no court decisions awarding damages under the Code. The only court decisions to date have been issued in response to motions brought by defendants seeking to strike out pleadings that include human rights claims. These cases have recognized that plaintiffs have a reasonable cause of action related to human rights violations under the Code, and courts seem to be allowing these claims to go forward. So while it appears that Ontario courts will be willing to award damages for breaches of the OHRC, there have only been decisions at a very preliminary stage of the process to date. It also remains unclear whether courts will be comfortable ordering reinstatement, where previously only damages would have been awarded.
Take for example, the 2012 Ontario Superior Court of Justice decision, Al-Dandachi v. SNC- Lavalin Inc., in which the defendant brought a motion to strike out all references in a plaintiff’s statement of claim relating to his human rights claim for failing to disclose a reasonable cause of action. The court concluded that it was “not plain and obvious that the plaintiff's human rights claim cannot succeed or that it necessarily fails to disclose a reasonable cause of action,” and refused to grant the defendant’s request.
Similarly, in the 2011 decision, Anderson v. Tasco Distributors, the defendant brought a motion to strike parts of the statement of claim on the primary basis that the court was without jurisdiction to hear a claim for breach of a provision of the Code. The court disagreed with this assertion and refused to grant the motion, allowing the claim to proceed.
The relative absence of case law in this area makes it challenging to determine the most effective way to proceed with a human rights claim. The Human Rights Tribunal route is generally more cost effective as cases are moved to mediation fairly quickly, the Tribunal supplies the mediator without charge, and there is no requirement to prepare a mediation brief with the associated legal cost. On the downside, applicants before the Tribunal are unable to recover their costs regardless of the merits of their case.
Parties can also get to mediation quickly through the civil litigation route, but the preparation is more expensive, and the parties have to pay for the services of the mediator who may not have any specific human rights expertise. In addition, although the plaintiff may be awarded costs, there is a countervailing risk for plaintiffs that costs could be ordered against them.
Lawyers are still unsure how the courts will address human rights claims when they finally reach trial. Until courts provide further guidance on the issue, lawyers and their clients will continue to weigh the relative merits of each type of proceeding in the context of the facts of a particular case to determine the most cost sensitive and strategically effective route to adjudicate these types of claims.
Denise Workun, and Janice Payne were recently interviewed by the Law Times on this issue. Click here to read the full article.