Law Times

Law Times ��� February 25, 2013 Page 13 FOCUS Pinto touts higher damages at HRTO Stiffer punishment would boost tribunal���s profile, lawyer says BY MICHAEL McKIERNAN Law Times H igher damages awards at the Human Rights Tribunal of Ontario could boost its profile among both applicants and respondents, according to the Toronto lawyer tasked with reviewing the province���s system. In a report released by the provincial government in November, Andrew Pinto recommended general damages be ���significantly increased��� in cases where discrimination is proven. Otherwise, he said, plaintiffs could look to the courts in search of bigger payouts while respondents may try to turn a deaf ear to proceedings. ���My sense and my instinct and what I not only heard from predicable quarters, which are plaintiffs��� counsel, but also I think off the record from some respondents��� counsel, was that damages are not significant enough to make this a priority for their clients,��� Pinto told an audience at a conference on the report jointly hosted by the Ontario Bar Association���s labour and employment and constitutional and civil liberties sections. ���If you had more significant damages and respondents��� counsel could say, ���Listen, if this goes to a hearing, you are going to be dinged and this is a serious matter,��� it may be of more significance to a certain spectrum of respondents,��� added Pinto, a partner with Pinto Wray James LLP in Toronto. The 2006 legislative changes to Ontario���s Human Rights Code lifted the $10,000 cap on compensatory awards for mental anguish. But in his review, Pinto said the move has failed to have the desired effect of increasing awards since the amendments came into force in 2008. ���The range of general damages is too low,��� complained panellist Farah Malik, a lawyer with WeirFoulds LLP who regularly represents applicants at the tribunal. ���The amendments to the code were supposed to take away the caps and open the door to higher awards, but in reality, this hasn���t happened. . . . In my view, the tribunal awards simply do not reflect the extent of the injury to an applicant���s dignity and self respect, particularly in cases where discriminatory conduct has continued for a relatively long period of time.��� A review of cases found damages awards typically land in the $500 to $15,000 range. Only exceptional cases have attracted awards of between $25,000 and $40,000, usually after the tribunal has found sex discrimination, termination or multiple intersecting grounds of discrimination. If this continues, Pinto told the conference, ���then the tribunal could lose its credibility.��� However, Antonella Ceddia, a lawyer with the City of Toronto���s legal services division, said she thought the recommendation Andrew Pinto would like to see significant increases to damage awards at the Human Rights Tribunal of Ontario. went beyond the terms of reference for the review and that it could cause problems considering Pinto���s admission in his report that the tribunal���s quasi-judicial status gives it the right to determine damages on a case-by-case basis. ���I���m not sure how you reconcile the increasing damage awards recommendation with these findings and that the system should operate independently,��� said Ceddia. Pinto said he also expected some controversy around another recommendation that called for the Ontario Human Rights Commission to take a role offering ���summary advice and information to assist respondents��� in complying with their human rights obligations. He said the new human rights system had given applicants a place to go for advice, the Human Rights Legal Support Centre, without providing an equivalent for respondents. The commission could help redress the balance, Pinto suggested. ���My sense of the criticism I heard was that the system was unbalanced because well-meaning respondents don���t necessarily want to immediately turn to lawyers and there is perhaps a role for the commission to play, not in providing legal advice, but giving them the tools by which they may be able to respond to a human rights challenge,��� said Pinto. ���It���s probably going to involve some resources, but I also saw it as a really important role that comes from the feedback that I got from respondents and applicants because I think it���s in everyone���s interest that businesses and corporations are well-informed about their human rights employment obligations.��� However, Barbara Hall, chief commissioner at the commission, suggested she envisioned a very limited role for it in dealing with respondents. ���I want to be clear that our mandate is to deal with systemic issues, not individual complaints, and we would not see a role for us in providing information to individuals on their cases,��� she said. According to Hall, the commission���s public education campaigns have already given her staff a lot of direct contact with a number of employers. ���Because so many cases occur in the workplace, a lot of our work, a lot of our public education work, a lot of our development of resources is directed at employers,��� she said. ���Many employers are very anxious to use our materials around competing rights. They���re dealing with that on a daily basis and we���re getting a great number of requests and responses to the training we���re doing on those issues.��� Whatever her feelings on individual recommendations, Ceddia said her main hope for the Pinto review was that the province would act on it. She said Pinto spoke for most stakeholders by painting the new human rights system as a qualified success and urged the provincial government to tackle weak points now rather than later. ���Let���s push further and faster now,��� she said. ���I���m pushing on the province to take a look at that now, not to delay, not to take an approach of ���Oh, we���ve commenced some changes ��� that���s OK,��� because that���s what we did with the old human rights system.��� LT Ball Professional Corporation Excellence in Employment & Labour Law ��� Counsel in Leading Cases ��� ��� Author of Leading Treatise ��� Wrongful Dismissal Employment Law Human Rights Post Employment Competition Civil Litigation Appellate Advocacy Disability Referrals on behalf of employees and employers respected 82 Scollard Street, Toronto, Canada, M5R 1G2 Contact Stacey Ball at (416) 921-7997 ext. 225 or srball@82scollard.com web: www.staceyball.com all_LT_Nov7_11.indd 1 11-11-08 11:44 AM CITED BY THE SUPREME COURT OF CANADA CANADIAN EMPLOYMENT LAW STACEY REGINALD BALL ���The most comprehensive text on employment law in Canada. 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