Charlton v. Ontario (Community Safety and Correctional Services), 2007 CanLII 24192 (ON P.S.G.B)
http://www.canlii.org/en/on/onpgb/doc/2007/2007canlii24192/2007canlii24192.html
Toronto Transit Commission v. Amalgamated Transit Union, 2004 CanLII 55086 (ON L.A.)
http://www.canlii.org/en/on/onla/doc/2004/2004canlii55086/2004canlii55086.html
Thursday, January 31, 2008
What damages should employers pay in harassment cases?
I've recently had occasion to read a number of cases of workplace harassment that causes mental suffering and a worker ends up leaving their employment. The question I was researching was how much should an employer pay?
As we know, where the harassment includes a prohibited ground of discrimination under the Human Rights Code (race, gender, sexual orientation, place of origin, colour, religion, family status etc. see s.8 of the Code), the Human Rights Tribunal has authority to grant damages for loss of dignity and hurt feelings. Only in the last year and a half have we seen the Tribunal award more than the usual paltry $3000 damages. In Hashimi v. International Crowd Management (2007 BCHRT 66) they awarded $10,000 and in Toivanen v. Electronic Arts(2006 BCHRT 396)the amount of damages was $20,000. Toivanen is a good case to read because it was well argued and the Tribunal awarded lost wages, lost benefits, legal fees and interest as well.
The highest amount of general damages awarded by a court in British Columbia to an employee who was sexually harassed in the workplace such that she became ill with depression and was unable to work was $125,000. This was the case of Sulz v. Canada (AG) where the court found that the plaintiff, a female former RCMP officer, had established the tort of negligent infliction of mental suffering.
In arbitration cases, the sum of $20,00 -$25,000 is not uncommon for cases where there has been personal harassment (i.e. non discrimination harassment). See the Charlton case from Ontario and the TTC (Stine grievance) case, also from Ontario.
As we know, where the harassment includes a prohibited ground of discrimination under the Human Rights Code (race, gender, sexual orientation, place of origin, colour, religion, family status etc. see s.8 of the Code), the Human Rights Tribunal has authority to grant damages for loss of dignity and hurt feelings. Only in the last year and a half have we seen the Tribunal award more than the usual paltry $3000 damages. In Hashimi v. International Crowd Management (2007 BCHRT 66) they awarded $10,000 and in Toivanen v. Electronic Arts(2006 BCHRT 396)the amount of damages was $20,000. Toivanen is a good case to read because it was well argued and the Tribunal awarded lost wages, lost benefits, legal fees and interest as well.
The highest amount of general damages awarded by a court in British Columbia to an employee who was sexually harassed in the workplace such that she became ill with depression and was unable to work was $125,000. This was the case of Sulz v. Canada (AG) where the court found that the plaintiff, a female former RCMP officer, had established the tort of negligent infliction of mental suffering.
In arbitration cases, the sum of $20,00 -$25,000 is not uncommon for cases where there has been personal harassment (i.e. non discrimination harassment). See the Charlton case from Ontario and the TTC (Stine grievance) case, also from Ontario.
Government and Health Unions strike a deal on Bill 29
Last June the Supreme Court of Canada struck down portions of Bill 29 for being in breach of the s.2(d) of the Charter of Rights and Freedoms. This landmark decision ruled that the freedom of association guaranteed by s. 2(d) included the right of unions to collective bargaining. The Court gave the BC government a year to deal with the consequences of the decision. Among the provisions that were struck down was the one that removed contracting out protection from the collective agreement. This was the provision that allowed health employers to contract out nearly all non-direct patient care services taking good paying jobs away from 8000 workers and creating a ghetto of low payinng cleaning, dietary and other support work. The question was what to do about all the workers who had lost their jobs.
This week the health unions and the government announced that they had reached an agreement that would see over 70 million dollars allocated to deal with the laid off workers.
It might seem like a paltry amount when looked at in the context of what each of those workers lost. And of course it is. But it's good news that a deal was struck. The government's strategy was obviously one of testing the strength of the Supreme Court's decision. For the decision essentially says that the obligation on the government is to engage in good faith bargaining and only after that has failed, can the government resort to legislation. The decision says a lot more, of course, but for this purpose, that's what the government would rely on. In other words, negotiate, but if there's no agreement, pass legislation to impose what you failed to negotiate, or worse. As for redress for all those workers who lost their jobs, the government no doubt counted on the Hislop case, another SCC decision, that says these kinds of rulings have no retrospective application. My suggestion then is that absent a deal the unions were gambling that the government would pass bad legislation that could very well survive a court challenge, and the laid off workers could have ended up with nothing. That's why it's good news that a deal was struck.
This week the health unions and the government announced that they had reached an agreement that would see over 70 million dollars allocated to deal with the laid off workers.
It might seem like a paltry amount when looked at in the context of what each of those workers lost. And of course it is. But it's good news that a deal was struck. The government's strategy was obviously one of testing the strength of the Supreme Court's decision. For the decision essentially says that the obligation on the government is to engage in good faith bargaining and only after that has failed, can the government resort to legislation. The decision says a lot more, of course, but for this purpose, that's what the government would rely on. In other words, negotiate, but if there's no agreement, pass legislation to impose what you failed to negotiate, or worse. As for redress for all those workers who lost their jobs, the government no doubt counted on the Hislop case, another SCC decision, that says these kinds of rulings have no retrospective application. My suggestion then is that absent a deal the unions were gambling that the government would pass bad legislation that could very well survive a court challenge, and the laid off workers could have ended up with nothing. That's why it's good news that a deal was struck.
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