Additional Information – Section 8 (Remedy)

When making an application (Form 1 or Form 1G) at the Human Rights Tribunal of Ontario (HRTO) under the Human Rights Code (Code), section 8 of the application asks about what remedies an applicant wants the HRTO to order against a respondent. A remedy refers to the outcome you are looking for from the HRTO.

The guiding principle in human rights law is that the remedy for discrimination or harassment should put an applicant in the position he or she would have been had the discrimination not occurred. See, for example, Ontario Human Rights Commission v. Impact Interiors Inc., 1998 CanLII 17685 (ON CA).

Section 45.2 of the Code gives the HRTO broad powers to make orders and to award remedies. The HRTO’s powers to grant remedies serves two main purposes – to provide monetary compensation to an applicant and to prevent further acts of discrimination by promoting future compliance with the Code.

A HRTO award of damages is intended to encourage respect for human rights, to provide sufficient liability so that would be violators of the Code will be discouraged from ignoring it and should provide for more than just token compensation.

You can go to the HRTO’s website to get the Applicant’s Guide, the Application Form and other information about HRTO procedures, policies and practices. An easy-to-understand description of the HRTO’s process is also available on the website at: Plain Language Guide

There are three (3) main types of remedies the HRTO may order if discrimination or harassment under the Code is found:

(a) monetary compensation;
(b) non-monetary remedies; and
(c) public interest remedies.

Each of these main types of remedies is discussed in detail below.

The HRTO may order two (2) types of monetary compensation:

• money to compensate generally for the loss of the right to be free from discrimination or harassment under the Code, including the insult to dignity, self-respect and feelings (*general damages); and
• money to compensate for any special financial costs or expenses experienced because of the discrimination or harassment (*special damages)

General damages are intended to financially compensate an applicant for injury to their dignity, feelings, and self-respect as a result of the discrimination or harassment. They are intended to compensate for the breach of the Code itself and for the personal impact that breach has on an applicant.

In Arunachalam v. Best Buy Canada, 2010 HRTO 1880 (CanLII) the HRTO summarized the legal principles on which general damages are awarded. Two criteria are generally applied – 1) the objective seriousness of the conduct and 2) the personal effect on the applicant who experienced the discrimination.

The first factor recognizes that injury to dignity, feelings, and self- respect is generally more serious depending, objectively, upon what occurred. The second criterion recognizes an applicant’s particular experience in response to the discrimination or harassment.

Some of the relevant considerations in relation to the second factor and the personal impact or effect on applicant are discussed in Sanford v. Koop, 2005 HRTO 53 (CanLII) and may include any of the following:

• humiliation experienced;
• hurt feelings experienced;
• loss of self-respect;
• loss of dignity;
• loss of self-esteem;
• loss of confidence;
• experience of victimization;
• vulnerability of the applicant; and
• the seriousness, frequency and duration of the offensive treatment.

Special damages are intended to compensate you for monies or expenses that you have lost or been forced to spend because of the discrimination or harassment.

This type of financial remedy is meant to put you back in the financial position you would have been in if the discrimination or harassment had not occurred in the first place.

You can claim different types of special damages depending on whether the discrimination or harassment happened in employment, in housing or in another social area that is covered by the Code.

Every case is different. Ask yourself if you have had to pay for something, or lost something with a monetary value, because of the discrimination. If so, you can include that cost in the financial remedy that you ask for in the application.

In an application claiming workplace discrimination (see section 5 of the Code), you might claim financial compensation if you experienced any of the following:

• lost income/wages (i.e. if you were terminated, based on a discriminatory reason, and had difficulty finding another job);
• lost benefits (i.e. long-term disability, health/drug benefits, etc.);
• lost bonuses or a commission that you would have made if you had not been discriminated against;
• the difference in income between an old job (where you were discriminated against) and a new job (that you found after the discrimination);
• loss of statutory employment-related benefits (such as maternity benefits under the Employment Insurance Act); or
• out of pocket expenses (such as job search costs or relocation expenses).

In an application claiming discrimination in housing (see section 2 of the Code), you might ask for financial compensation to cover the following costs:

• the rental deposit you paid to the landlord who discriminated against you;
• your moving expenses if you were forced to move because of discrimination and/or harassment; or
• the difference in rent between your previous rental unit (where you were discriminated against or harassed) and your new housing (that you found after the discrimination) if your new rent is higher.

You should fill in section 8 of the application with as many details as possible about how much money you want, including details about how you calculated that amount.

To decide how much money to claim as your financial remedy, you will want to add up the amount for both general damages and for special damages.

There is no standard general damages award at the HRTO. There is no one size fits all answer to the question of how much money is reasonable. This is because each case and each applicant are unique and the HRTO decides the appropriate compensation based on the evidence, the law and arguments presented in each case.

In some cases, the violation of the Code is relatively trivial. See, for example, Kovacs v. Inscan Contractors, 2010 HRTO 810 (CanLII). In other cases, the violation of the Code may be significant and the impact on the applicant profound. See, for example, A.B. v. Joe Singer Shoes Limited, 2018 HRTO 107 (CanLII).

The amount of special damages that may be awarded by the HRTO will again depend on the circumstances of the specific case. It is useful to consider some examples. If an applicant lost a job because of discrimination, the applicant should calculate the amount of earned income that was lost each week during being unemployed.

For example, if you earned $15 per hour and you were off work for 10 weeks, you would ask for:

• $15 per hour x 35 hours per week x 10 weeks = $5,250

If you are still unemployed, you will not be able to give a final figure. You may fill in the form by asking for lost wages at the rate of $15 per hour x 35 hours per week.

Or, if a landlord refused to rent an apartment to you for a discriminatory reason, and as a result, you had to rent a more expensive apartment, you may ask for the difference in rent for a reasonable period. If you were evicted for a discriminatory reason, you could also claim your moving costs.

For example, if the difference in rent is $200 per month, you could ask for:

• $200 X 12 months = $2,400
• Moving truck costs = $840.00

Sometimes it is difficult to include a final and exact figure in the application. It may be too early for you to know the full financial impact of the discrimination. In that case, you can complete the application by telling the HRTO the basis for your special damages claim.

For example, you can include the monthly amount of your lost wages or your increased rent. Write in your application that you are seeking financial compensation in that monthly amount from the date of the discrimination to the date on which the HRTO decides on the application.

Yes. Although an applicant has a right to ask for monetary compensation for your financial losses, an applicant also have duties and obligations under the Code to mitigate your monetary losses.

This means that an applicant must actively try to lower the size of the financial losses resulting from the discrimination and/or harassment by taking reasonable steps to limit the losses. An applicant is entitled to be compensated only for those losses that could not have been avoided.

For example, if you are fired from your job, you have the duty to look for another job at a similar wage level. See, for example, McCreary v 407994 Ontario, 2010 HRTO 2369 (CanLII) where the HRTO held that an applicant is under a duty to mitigate his or her losses by making reasonable efforts to obtain other suitable employment

If you were denied an apartment, you should look for an apartment that is a similar size and that rents for a similar monthly amount.

If you do not try to take steps to limit your financial losses, the HRTO may reduce the amount of money that it will award to you as monetary compensation.

For example, the HRTO would not likely award you an amount for lost wages if you refused to accept a reasonable job offer.

It is very important to document your efforts to limit your losses. Keep copies of your job applications or searches and the contacts you make when possible. If it is housing based discrimination, keep a record of your housing searches.

Yes. The HRTO may order interest at the rate established for civil litigation in the Ontario court system, under provincial legislation called the Courts of Justice Act.

The HRTO may order pre-judgment interest and post-judgment interest on any amount of money that is awarded to you including general damages and special damages.

Post-judgment interest is generally ordered to run from the date of the HRTO order until full payment is made.

Pre-judgment interest is more complex. The HRTO may treat a general damages award differently from a special damages award.

The HRTO may also order a respondent to do something that will put you in the position you would have been in if the discrimination or harassment had not happened.

For example, in an employment situation, the HRTO may, depending on the circumstances of the case, order:

• reinstatement to your job;
• a promotion;
• an offer of employment;
• the removal of a harasser from your work environment;
• letters of assurance of future compliance with the Code; or
• a letter of reference.

If you experienced discrimination in housing or in using a service, you could seek different non- monetary remedies.

For example, if a landlord refused to rent to you for a discriminatory reason, the HRTO can order the landlord to allow you to rent the next available apartment in his or her building.

Section 45.2(1)3 of the Code permits the HRTO to make an order directing any party to do anything that, in the HRTO’s opinion, the party ought to do to promote compliance with the Code.

The HRTO can therefore order a wide range of remedies that are in the public interest. These public interest remedies are intended to have an impact on more people than just the person making the human rights application and the person and/or organization responding to it.

Public interest remedies can have an educational impact, giving other potential respondents and the general public a greater understanding of human rights law in Ontario.

Public interest remedies are often intended to prevent similar discrimination from happening in the future. The HRTO could, for example order a respondent to:

• change hiring practices;
• develop non-discriminatory policies and procedures;
• develop internal human rights complaint procedures;
• implement pro-active measures (such as a recruitment policy aimed at eliminating barriers for racial minorities);
• implement education and training programs (such as having all staff receive training on a human rights policy);
• publish an extract of the decision in the corporate newsletter;
• post the Code in the workplace;
• require a property management company to send a memorandum about the Code to all its superintendents and/or agents;
• donate to charity; or
• ensure the organizational respondent delivers racism training at the annual meeting.

See, for example, McWilliam v. Toronto Police Services Board, 2020 HRTO 574 (CanLII), where the HRTO ordered the TPSB to develop and implement several public interest remedies concerning the police services’ human rights training, strategies, and policies.

No. The HRTO has no jurisdiction to award costs to any a party. See, for example, M.O. v. Ottawa Catholic District School Board, 2011 HRTO 1174 (CanLII).

The HRTO Rules of Procedure do provide that remedies may be changed or refined after an application is filed. See, for example, Christianson v. Windsor Police Services, 2009 HRTO 1787 (CanLII).

The HRTO does not, in some cases, require that an applicant make a formal Request for Order During Proceeding (RODP – Form 10) to consider a request to change the remedies requested in section 8.

However, it is prudent and advisable to make a formal RODP request to ensure that there is a record of your request and to give the respondent an opportunity to make submissions in response to your request. In granting an amendment the HRTO considers several factors including the stage of the proceeding at which the request to amend is made, the nature of the amendment and the absence of any apparent prejudice to a respondent. See, for example, Soni v. Hilton Suites Toronto/Markham Centre and Spa, 2016 HRTO 287 (CanLII).

Yes. The HRTO’s remedial jurisdiction is not confined to choosing from among the remedies requested by the parties. The HRTO has the authority to grant remedies it finds most appropriate in the circumstances of the application.

Under section 45.2(2) of the Code, the HRTO may make an order to promote future compliance even if such an order was not requested. See, for example, Conklin v. Ron Joyce Jr. Enterprises Ltd. (Tim Horton’s), 2017 HRTO 723 (CanLII).

Where an applicant is successful in an application under the Code, a HRTO Order may look similar to the one set out below.

THE TRIBUNAL ORDERS THAT:

(a) The respondents are to pay $5,000 to the applicant as monetary compensation for injury to dignity, feelings and self- respect. Post judgment interest will be payable on this amount from the date of this judgment, in accordance with the rate set under the Courts of Justice Act;
(b) The respondents are to pay $4,276.00 to the applicant as monetary compensation for lost wages. Prejudgment and post judgment interest will be payable on this amount, commencing from September 2009, in accordance with the rate set under the Courts of Justice Act;
(c) The respondent is required to provide a copy of this decision to all current staff and administrators who have authority to conduct investigations under its human rights policy and procedures;
(d) The respondent is required to review and modify its human resources policies to establish a process for the investigation of potential human rights violations that is consistent with the Ontario Human Rights Commission Guidelines on Developing Human Rights Policies and Procedures;
(e) The respondent is required to distribute the new human rights policy and amended procedures to all employees; and
(f) The respondent will publicly display a copy of the Code and its policy in the reception area