Human Rights Bulletin

July 2008

Keays v Honda
Punitive Damages
Discrimination and damages
Reasonable notice
The damages formerly known as "Wallace"? 
Ontario Human Rights Commission Policy on Accommodation.
Queen's Human Rights Office brochure on accommodation

 

Discrimination and Damages

Why can Courts not award punitive damages for discrimination?

Civil Courts can not award punitive damages against employers who discriminate against their employees for the following reasons:    

  1. Human Rights codes contain a comprehensive system for dealing with the effects of discrimination. 

  2. The purpose of human rights law is to compensate the complainant for economic and psychological loss incurred because of discriminatory conduct, not to punish employers who discriminate against their employees; 

  3. Punitive damages require independent actionable wrongs; discrimination is not an independent actionable wrong, therefore it can not give rise to punitive damages.   

  4. In most provinces and territories, complainants can not pursue discrimination in civil court. Recent amendments to the Ontario Human Rights Code, would allow plaintiffs to advance discrimination in connection to another wrong in civil court. The damages awarded in such cases would be limited to actual psychological loss (mental stress, loss of dignity) incurred by the discrimination. In other word, the damages would be compensatory, not punitive.

Will recent amendments to the Ontario Human Rights Code challenge the Code's remedial thrust?

No. Recent amendments to the Code will allow complainants to go to civil court to advance a breach of the Code as a cause of action in connection with another wrong.   This cause of action, however, will never give rise to punitive damages.   "Monetary compensation", explained the Supreme Court, will be "restricted to "loss arising out of the infringement, including any injuries to dignity, feelings and self-respect. In this respect, they confirm the Code's remedial thrust" 63

Did the Court hear Keays' appeal for it to recognize a tort of discrimination?

No, because of a number of concerns brought up by interveners:

  1. First, human rights codes already remedy the effects of discrimination

  2. Second, a tort of discrimination could lead to punitive damages, which are contrary to the remedial thrust of human rights legislation

  3. Third, outside Ontario, human rights issues are the sole jurisdiction of human rights tribunals, not civil courts

  4. Fourth, a tort of discrimination "might undermine the statutory regime which for many victims of discrimination is a more accessible and effective means by which to seek redress" (29)