Ontario’s human rights legislation underwent various amendments in 2008. For the first time, a court deciding a civil lawsuit was allowed to order remedies for violation of human rights protected under the Human Rights Code. In other words, it was and is no longer just the Human Rights Tribunal of Ontario (the specialized body that decides human rights applications in Ontario) that can order a remedy for a human rights violation. Courts are now empowered to do so as well. Section 46.1 of the Human Rights Code allows a court in a civil proceeding to order either monetary compensation or a non-monetary form of restitution for loss arising from a violation of a person’s human rights. The only restriction is that the court case cannot be based only on a human rights violation – it must involve additional wrongful conduct.
Until very recently, this new section of the Human Rights Code was untested, in that there were no reported court cases dealing with it. This changed with the decision in Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799, in which the Superior Court of Justice ordered a payment of monetary damages for breach of the Human Rights Code. This case involved an employee with a medical disability who had been wrongfully terminated by her employer. In addition to awarding the plaintiff damages based on what the court concluded would have been a reasonable notice period, the judge awarded her $20,000 for the violation of her right to equal treatment in employment despite her disability, and the intrinsic injury to dignity, feelings and self-respect that a person who suffers discrimination in the workplace experiences.
I anticipate that the decision in Wilson v. Solis Mexican Foods Inc., and section 46.1 of the Human Rights Code on which the court relied, will be used in civil lawsuits where sexual and/or physical abuse is alleged.
There are five broad social areas to which the Human Rights Code applies and in which discrimination is prohibited:
Services, goods and facilities;
Occupancy of accommodation;
These are all contexts in which sexual assault and physical abuse and violence can and do occur. Consider, for example, an elderly resident of a retirement or nursing home who is not only sexually violated by a staff member charged with caring for her, but is also subjected to disparaging comments about her age or medical condition. This would not only give rise to a lawsuit in which damages could be claimed for sexual assault and battery, and for which the staff member’s employer would likely be vicariously liable, but also for a remedy (both monetary and non-monetary) to address the additional violation of the resident’s right to be free from discrimination on the basis of age and disability in her occupancy of accommodation and her receipt of services. In a case such as this, there could be some creative non-monetary remedies available by virtue of section 46.1 of the Human Rights Code, such as moving the resident to a different location or provision of additional and ongoing forms of care, all at the employer’s expense. These types of non-monetary remedies would not be available in a typical court case if it were not for the Human Rights Code.
There are numerous prohibited grounds of discrimination under the Ontario Human Rights Code – these include race, place of origin, colour, ethnic origin, citizenship, sex, sexual orientation, age, marital and family status, and disability. I think it is fair to say that, not infrequently, discrimination on one or more of these grounds accompanies sexual and/or physical abuse.
Where, in an abuse case, the wrong and the resulting harms are not adequately addressed by an award of conventional damages, then consideration should definitely be given to whether an additional remedy under the Human Rights Code, be it monetary and/or non-monetary, is also warranted. The decision in Wilson v. Solis Mexican Foods Inc. substantiates this, and lawyers involved in sexual and physical abuse cases need to be open to pursuing this additional avenue of recourse if they are acting for plaintiffs, and anticipating and responding to it if they are acting for defendants.