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.