Published on November 12, 2007 by Donna Seale
There is a helpful post by Michael Fitzgibbon regarding the factors that the Ontario Human Rights Tribunal takes into account when assessing general damages in favour of a complainant. Although he is speaking of the current state of the law in Ontario, I think that the Human Rights Tribunal in Manitoba would give consideration to the same factors.
What I would add to Michael’s comments is that I sometimes find the concept of general damages to be misunderstood by parties to a human rights complaint. Employers, typical respondents, often view general damages as punitive against them. Employees, typical complainants, will occasionally want to ask for the sun, moon and stars when the issue of general damages is being discussed in an attempt to "get back at" their employer. The fact is that in human rights law, an award of damages is designed to place the complainant, as much as is possible, in the position he or she would have been in had the human rights violation not occurred. General damages are for non-economic losses and speak to compensating a complainant solely for the injury done to their dignity and feelings for breach of their equality rights. There is no punitive element to an award of general damages. This is why, at least until recently, general damage awards in human rights proceedings were low in comparison, say, to awards in civil courts.
If, however, the Manitoba tribunal, for example, wished to award damages against a respondent for acting recklessly or maliciously in a given circumstance, there is a provision under The Manitoba Human Rights Code which would allow an award of exemplary or punitive damages — this is above and beyond an award of general damages. Other human rights codes across the country have similar provisions.
Now, how does this jive with what I’ve been discussing in previous posts about tribunals taking a more aggressive stance on issuing damages? Well, the difference lies in the purpose behind the award. When a tribunal orders punitive damages, the tribunal is, in effect, making an example of the particular respondent in question for its flagrant violation of the law. The trend of tribunals increasing general damage awards is, I believe, a message to all employers generally that because they haven’t seemed to "get it" (their obligations under human rights law, that is) the tribunals are raising the bar so that they do. The overall goal is to encourage all employers to commit to complying with human rights legislation.