McCague Borlack LLPLitigation Boutique, GLOBAL Litigation Law Firm

 

 

 

Articles and Publications

The Benefits of Employment Liability Practices Coverage: Human Rights Tribunal Cases

Miranda Serravalle
Miranda Serravalle,
Associate

December 2015

By Miranda Serravalle
First presented at an Employment Practices Liability Seminar

Introduction

Given that human rights judges can make any award apart from legal fees to remedy discrimination, the possibility of an employee bringing a claim before the Human Rights Tribunal is an important reason for employers to have employment practices liability (EPL) coverage. Some of the available remedies at the Human Rights Tribunal are mandatory reinstatement with back pay, general damages for discrimination, wage loss recovery, forced sensitivity courses, and human rights training. This paper will examine Human Rights Tribunal cases that emphasize the importance of EPL coverage.

Cases Involving an Employer's Failure to Investigate

One of the benefits of EPL coverage is that it can protect employers from Human Rights Tribunal cases involving the employer's failure to investigate.

In Morgan v Herman Miller Canada Inc.,1 Mr. Morgan, a black man, was a furniture installation scheduler working at Herman Miller. Mr. Morgan claimed that he was being treated like a "black slave" because he was told to get a box of liquor from the company president's car. A month after Mr. Morgan complained, he was fired. He launched a human rights lawsuit claiming discrimination.

At trial, adjudicator Geneviève Debané found that once Mr. Morgan had made his discrimination complaint, the company had a duty to investigate and to take positive action. Given that the company failed to investigate and instead made an excuse for the termination (despite the termination ultimately being because of his complaint), Mr. Morgan was awarded 14 months pay after having only worked for the company for three years. He also received general damages for discrimination. Not only that, but the company and its president were forced to participate in human rights training.

The Adjudicator did not find that Mr. Morgan had been mistreated until the company failed to investigate his complaint.

It is important to note that Adjudicator Debané did not find that Mr. Morgan had been mistreated until the company failed to investigate his complaint. In other words, he was awarded human rights damages despite the Tribunal's holding that he had not been discriminated against. As such, the case is an important one for employers to remember in the sense that, even if it is ultimately found that the employee in question was not discriminated against, the employer can be penalized for failing to properly investigate.

Cases Involving an Employer's Failure to Accommodate

Failure to accommodate cases are also ones that can arise when employers do not have EPL policies in place. For instance, in Fair v Hamilton-Wentworth District School Board,2 Sharon Fair, an employee of the Hamilton-Wentworth District School Board, was ordered to be reinstated nine years after her termination, in addition to receiving back pay and lost benefits totalling almost $500,000. After having developed an anxiety disorder, Ms. Fair had been fired after three years on the board's long-term disability plan. Before she was fired, the board refused to offer her available jobs that she said she could have performed despite her anxiety disorder. The Human Rights Tribunal held this to be a significant failure to accommodate a disability.

Another accommodation case that exemplifies why employers should have EPL policies in place is Maciel v Fashion Coiffures.3 In that case, Jessica Maciel was fired from a hair salon called Fashion Coiffures after having worked there for one day and disclosing that she was pregnant. The Human Rights Tribunal found that her termination was due to her pregnancy and Ms. Maciel, despite having only worked at the hair salon for one day, was awarded $35,000 for lost wages, benefits and punitive damages.

One reason for which employers should be fearful of the Maciel case is that the Human Rights Legal Support Centre, an Ontario government-sponsored program that argues human rights cases on behalf of employees for free, sent out a mass press release broadcasting the decision. In other word, employers can face public scrutiny as a result of Human Rights Tribunal cases.

Conclusion

The above cases show the many benefits of EPL coverage for employers. An employer's failure to have an EPL policy in place can lead to exposure to a variety of applications from employees, including damages for discrimination and other violation of the Human Rights Code.


1 2013 HRTO 650.
2
2013 HRTO 440.
3 2009 HRTO 1804.


TORONTO | OTTAWA | KITCHENER | BARRIE

416.860.0001 | mccagueborlack.com | Follow us on Twitter twitter

McCague Borlack LLP is a member of the Canadian Litigation Counsel, a nationwide affiliation of independent law firms. Through CLC's association with The Harmonie Group, our clients have access to legal excellence throughout North America, the U.K. and Europe.

clcnow.com | harmonie.org