Since the mid-’90s, dissatisfied litigants of Ontario’s human rights regime have bemoaned its apparent shortcomings. Complainants before the Human Rights Commission wait years for a resolution.
Conversely, since the commission lacks adequate discretion to immediately dismiss unmeritorious complaints, innocent corporate respondents are burdened with defending marginal complaints.
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Referring to a “broken” human rights regime, Ontario Attorney General Michael Bryant announced new legislation intended to repair the system. The way Ontario adjudicates human rights and wrongful dismissal matters will face inevitable transformation.
Victims of discrimination will have access to greater remedies: At a Law Society conference on employment law I recently attended, the main theme was the enlargement of damage awards for the dismissed employee. If a human rights complaint is brought as part of a wrongful dismissal action, courts will soon have broad powers to award extensive non-monetary human rights remedies, where they previously were limited to taking violations into account only when awarding damages. Therefore, if a victim of discrimination took two years to find another job, based on the new human rights principles, a judge could award them two years’ wages and their legal fees, whereas that same victim may previously only have been entitled to a few months pay.
Under the new system, complainants suing for human rights allegations in the courts will be able to take advantage of pre-trial discovery procedures in order to assess and advance their claims. An individual alleging discrimination in the context of wrongful dismissal will be able to examine the corporate respondent’s documents and key employees, forcing an employer to turn over incriminating evidence. These measures will be taken before the complaint is ever proven.
The remedial powers of the Human Rights Commission and the tribunal, which adjudicates only human rights matters, will become more generous: A tribunal that concludes discrimination has occurred will be able to award monetary compensation in excess of the formerly criticized $10,000 cap; restitution other than compensation, such as reinstatement; and other direction that, in the tribunal’s opinion, will promote human rights compliance.
The commission’s investigative powers will also be broadened. The commission will be allowed to initiate review and inquiries into incidents of “tension and conflict” in a community, institution, industry or sector of the economy, as well as authority to initiate or assist in cases where it is of public interest to do so, which will invariably influence the direction of human rights litigation.
Finally, the reforms have proposed that no human rights complaint can be disposed of without affording an opportunity for the complainant to make oral submissions, leaving many employee-side lawyers eager to plead their case.
The potential for court-ordered human rights awards will inevitably change the landscape of litigation and, thus, the gamble of having a case heard at trial. Employers should be more willing to trade compensation for an assurance their name won’t be in the news.