Law Times

PAGE 10 FOCUS November 17, 2008 • Law Times Out with the old and in with the new BY JUDY VAN RHIJN For Law Times ust as the Supreme Court plays its hand, confirming via Honda Canada Inc. v. Keays that civil suits for hu- man rights violations are not available, the Ontario legislature trumps the decision with the passing of the new Ontario Hu- man Rights Code — particularly s. 46.1 which addresses claims involving alleged human rights violations. The new regime began on July 1, bringing with it what Toronto employment lawyer David Harris says are three significant changes: 1) The end of a statutory cap for emotional suffering; J 2) The creation of a civil action for a breach of the code, when filed with another claim; 3) A civil remedy for restitution. Harris believes that these changes will be so enthusiastical- ly embraced by plaintiff's lawyers that human rights complaints attached to wrongful dismissal claims won't go to the human rights office at all. "I expect the workload of the tribunal to de- crease and lead times to decrease. That's the government's ambi- tion with the legislation." Avoiding the old system with its notorious delays and backlogs will be a great incentive to use the courts. "A human rights remedy takes five or six or seven years to get a hearing date," complains Harris. "Reinstatements are few and damages are limited by the cap to $10,000 so it is not a very effective remedy." Now, theoreti- cally, the sky's the limit, although Harris thinks awards will be akin to the damages being awarded for emotional stress in the $30,000 to $50,000 range. Angela Rae says it will be pos- sible to run pure wrongful dis- missal claims and human rights complaints, but costs will drive consolidation of proceedings. Another incentive to eschew the tribunal will be the courts' unprecedented ability to award monetary and non-monetary remedies to a plaintiff for injury to dignity, feelings, and self-re- spect in a legal proceeding such as a wrongful dismissal claim. Angela Rae, of Filion Wakely Thorup Angeletti LLP, points out that it will be possible to run a pure wrongful dismissal claim in the courts and a pure human rights complaint at the tribunal, but the obvious question of costs will drive parties to consolidate proceedings. "When the Human Rights was the gatekeeper, it was a party to anything that went through and usually championed the em- ployee's case. The Commission will no longer be playing that role in each and every case and it's not clear how involved the Human Rights support centre will be. An Covering the widest range of topics … More than 5,500 cases cited! Canadian Stacey Reginald Ball, of the Ontario, British Columbia and Alberta Bars employee will need a lawyer for both proceedings. Now that you can combine them, why not pay for one instead of two?" Additionally, there are pro- cesses available in a court claim that are not available at the tri- bunal, such as a right to oral discovery before the hearing. Employees will see this as a pro- cedural advantage. It begs the question whether plaintiffs will start taking on a hu- man rights complaint in the same reflex way that applications for Wallace damages became standard practice, eventually attracting the ire of judges and reductions in awards for frivolous or spurious claims. "I think judges will be care- ful about the nature of the award," says Harris. "Judges will award it on an exceptional basis." Rae agrees. "You have got to keep in mind that human rights claims are harder to craft on tenuous facts than claims for Wallace damages. Where it is possible to do it, plaintiff's law- yers will, but there will not be as much of a floodgates situation as we saw with Wallace." Rae predicts some interesting procedural and evidentiary changes arising from the new legislation. "With the injection of human rights issues, you'll see the more frequent and extensive use of expert witnesses, and not just medical experts as in a disability-type case. Tribunals make extensive use of expert evidence on discrimination, for example. I expect to see that imported into wrongful dismissal claims, causing increased costs and complexity." Another prediction is that judges may end up consider- ing decisions of the tribunal, not formally as a precedent but for guidance. "I can see plaintiff law- yers raising tribunal decisions if Also available on CD-ROM or Internet! Employment Law Ball&Alexander Barristers & Solicitors " … the most comprehensive text on employment law in Canada. It is carefully constructed and accurate." 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Looseleaf & binders (2) • $297 • Supplements invoiced separately (3-4/yr) P/C 0439030000 • Vol. 1 ISBN 0-88804-218-3 • Vol. 2 ISBN 0-88804-362-7 CD-ROM or Internet version available separately • Prices start at $215 For a 30-day, no-risk evaluation call: 1 800 263 2037 or 1 800 263 3269 www.canadalawbook.ca Canada Law Book is A Division of The Cartwright Group Ltd. • Free Shipping on pre-paid orders. Prices subject to change without notice, and to applicable taxes. LT0714 www.lawtimesnews.com Excellence in Employment & Labour Law • Counsel in Leading Cases • • Authors of Leading Book • Wrongful Dismissal Labour Relations Employment Law Human Rights Post Employment Competition Civil Litigation Appellate Advocacy Workers' Compensation Employment Standards Administrative Law 82 Scollard Street, Toronto, Canada, M5R 1G2 Phone: (416) 921-7997 Fax: (416) 921-3662 web: www.staceyball.com www.kenalexander.ca they are instructive of appropri- ate damages and restitution," says Rae. A significant procedural change that may not be positive may arise with the naming of individuals as defendants as well as the employing entity. "In the case of harassment, you would name the alleged harasser, or the supervisor of a work group as defendants," suggests Rae. "I think we will see the same in court claims now, leading to longer discovery, more parties, and increased costs." She poses the question whether employers will start seeking to third party the harasser. "If it evolves that way, settlements will be harder and more expensive, particularly where restitution remedies such as reinstatement are sought." Under the human rights code, the wording of restitution nor- mally means reinstatement, which is abnormal to common law. Rae sees that there is a risk that courts will interpret their ability to order non-monetary restitution as au- thorizing them to order reinstate- ment, although whether it will be an effective remedy by the time the case gets to trial is unknown. "In my experience the aver- age human rights case took much longer to get through the Human Rights Commission and then to the tribunal (than a court case takes) and even under those cir- cumstances, the tribunal certainly did award non-monetary restitu- tion and order measures such as policies and training. However, the tribunal has historically been very unlikely to award reinstate- ment. This may be because it is seldom requested, maybe due to the passage of time. The court will not be different," she says. Rae is sure that plaintiff's law- yers will seek reinstatement in their claims whether the court is likely to award it or not. She calls it a "no-brainer." "Having the spectre of reinstatement is fabu- lous leverage for negotiations." In fact, all the changes will have a significant impact on ne- gotiations and settlements. "The impact of the legislation in gen- eral is to make disputes easier to resolve," says Harris. "The plain- tiff has a much more powerful remedy." He believes it will expand the purposes and boost the effective- ness of mediation. "There is an incentive for a company to settle because it is unknown how the legislation will be interpreted. It is a new frontier and it will take a year and a half for decisions in- terpreting the new legislation to be handed down," he says. The fact that any eventual awards received will be nontax- able revenue will not be lost on lawyers who will try to push more of the settlements into the preferred tax treatment bracket. Despite all the changes, Rae says her overall advice to employ- ers will not change. "Employers have been aware for years of the need to be proactive in respect to human rights with policies and training and an internal investi- gative procedure." Harris says the legislation will make them even more proactive. "There will be a lot of emphasis on educating the workforce — making sure managers and supervi- sors understand what human rights are and that they don't do anything to attract a claim because there will be a much more immediate access to a remedy than before. Employ- ers' groups oppose the changes but from 20 miles up, it's a good thing for the population." LT

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