Human Rights Remedies
Human rights claims can produce remedies that differ significantly from those
available in an ordinary wrongful dismissal action. Depending on the case,
relief may include compensation for lost income, injury to dignity, reinstatement,
future income loss and other restorative remedies.
The materials below examine the principles governing human rights remedies,
the assessment of income loss, the effect of employment contracts,
reinstatement, mitigation, costs and significant damage awards.
General Principles & Proof
Human Rights Remedies
An overview of the distinctive remedies available in human rights cases
and the potentially substantial awards that may follow from discrimination,
retaliation and related workplace conduct.
Reasonable Inference & Historically Disadvantaged
A review of how discrimination may be proven through circumstantial evidence,
particularly where there is little or no direct evidence of race, age,
religion or other prohibited grounds.
Must Employer Give Reasons for Termination? Seems So
An examination of whether modern human rights, good-faith and honest-performance
principles may require an employer to provide truthful reasons for termination,
and the consequences that may follow from the reasons given.
The Gatekeeper: Alberta
A review of the Alberta Human Rights Commission screening process,
including the role of the Director and the review function exercised
by the Chief of the Commission and Tribunals.
Decisive Action by Employer Avoids HR Complaint
An Alberta decision illustrating how prompt and effective employer action
in response to discriminatory workplace conduct may avoid an adverse
human rights finding.
Income Loss & the Employment Contract
Claims for Income Loss
A review of lost-income claims arising from termination, poisoned work
environments and reprisal. Human rights compensation follows a restorative
approach and may differ significantly from common-law wrongful dismissal damages.
Future Income Loss
An examination of the tribunal’s ability to award prospective income loss
beyond the hearing date, including cases in which reinstatement was not ordered.
The Employment Contract & Human Rights
A consideration of how severance provisions and fixed-term employment agreements
interact with the restorative principles applied to human rights compensation.
Disputing the Employment Contract
A discussion of the difficulties that may arise when a party attempts to
challenge the validity of an employment agreement or release within a
human rights proceeding.
Denial of Opportunity
A review of loss-of-chance damages where discrimination has deprived an
applicant of an employment opportunity, including the assessment of the
probability that the applicant would otherwise have been hired.
Limiting the Income Loss Claim
An examination of intervening or extraneous factors that may bring a
human rights income-loss claim to an end, even where liability has
otherwise been established.
Mitigation in Human Rights Cases
A review of the complainant’s obligation to take reasonable steps to
obtain comparable employment and the employer’s burden of proving
a failure to mitigate.
Reinstatement & Continuing Employment
Reinstatement Remedy
A national review of reinstatement as a human rights remedy, including
the factors tribunals consider when deciding whether restoration of the
employment relationship remains viable.
Reinstatement as a Remedy in Alberta Human Rights
A focused examination of reinstatement under the Alberta Human Rights Act,
including the discretionary nature of the remedy and the relatively limited
number of Alberta cases in which it has been ordered.
Phantom Termination in Human Rights Remedy
A discussion of cases in which an employer argues that employment would
have ended in any event because of a business closure, restructuring or
some other future event, thereby limiting the income-loss remedy.
Resignation of Mentally Disabled Employee: A Minefield
An examination of the legal risks arising when an employee with a mental
disability resigns, including the employer’s duty to inquire, accommodation
obligations and other potential liabilities associated with accepting
the resignation at face value.
Damages, Costs & Significant Awards
Costs in Alberta Human Rights Cases
A review of the Tribunal’s statutory authority to award costs and the
exceptional circumstances in which costs have been granted in modern
Alberta human rights proceedings.
Summary of Alberta Human Rights Damage Awards
A chart-based summary of Alberta human rights damage awards intended to
provide a practical reference point when assessing injury-to-dignity
and related remedies.
Alberta Human Rights Tribunal Awards Over $1 Million in Disability Discrimination Case
A review of Volpi v Lifemark Health Corp, in which the Alberta
Human Rights Tribunal awarded more than $1 million after finding that the
employer failed to adequately inquire into whether an employee’s leave
request and resignation were connected to mental disability.
Ontario Court of Appeal Allows $1.5 Million in Punitive Damages in Disability Claim
A review of the Ontario Court of Appeal decision upholding a $1.5 million
punitive-damages award against a disability insurer, together with aggravated
damages and the underlying disability-benefit award.
Civil Actions & Human Rights Relief
Ontario – Requirement of a Companion Action for Human Rights Relief in Civil Proceeding
A review of Ontario’s statutory scheme allowing human rights remedies
to be pursued in a civil proceeding where there is a separate companion
cause of action, together with the limits imposed on claims based solely
on a Human Rights Code infringement.