Canada: Ontario Court Again Confirms Its Authority To Award Human Rights Damages

Ontario employers are no stranger to the fact that the Human Rights Tribunal of Ontario and labour arbitrators can award human rights damages. It has, however, been much less common to see an Ontario court award human rights damages. However, legislative developments and recent decisions, including Silvera v. Olympia Jewelry Corporation, 2015 ONSC 3760, confirm the authority and the increasing number of cases in which Ontario courts award human rights damages. This serves as a warning for all employers with employees in Canada to ensure that they have in place appropriate human rights-related policies and practices.

A Defining Moment in 2008

In 2008, a number of significant amendments to the Ontario Human Rights Code came into effect. One of these amendments permitted a court, in a civil (court) proceeding, to award an employee human rights damages, including general damages. However, the court could only do so where the civil proceeding is not based solely on an infringement of the Code. Before these amendments came into effect, Ontario courts did not have the authority to award human rights damages to an employee.

The Increasing Trend of Ontario Courts to Award Human Rights Damages

It took approximately five years before an Ontario Court first exercised this authority. In 2013, the Court in Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799 awarded the plaintiff $20,000 in general damages for an employment-related human rights violation, among other remedies.

Post-Wilson, there have been about a handful of reported decisions where an Ontario court has awarded human rights damages, including Bray v. Canadian College of Massage and Hydrotherapy, 2015 CarswellOnt 1232 (Ont. Sm. Cl. Ct.) and Partridge v. Botony Dental Corporation, 2015 ONSC 343. The number of recent awards demonstrates an increasing trend of such awards and Ontario courts are prepared to award human rights damages in appropriate cases.

The Most Recent Human Rights Damages Award by an Ontario Court

On June 16, 2015, the Ontario Superior Court of Justice released its decision in Silvera. The case represents the most recently reported decision by an Ontario court to award human rights damages to a former employee.

In Silvera, the plaintiff commenced an action for damages arising out of alleged wrongful dismissal by her former employer and a series of sexual assaults and battery, sexual and racial harassment perpetrated by her former direct supervisor while she was employed. The employer and the direct supervisor, the named defendants, did not appear at trial. That being the case, the Court decided that all of the factual allegations set out in the plaintiff's amended pleadings were to be taken as admitted.

The Court held that during her employment, the plaintiff was subject to inappropriate racial comments, derogatory language, and repeated sexual assaults by her former direct supervisor. The Court also found that the employer purportedly terminated her for prolonged absence from work and a failure to communicate about her absence and pending return to work without basis to do so.

In discussing the human rights component of the plaintiff's claim, the court found that her rights as set out in the Code had been violated by the direct supervisor. Specifically, her rights "...i) under s. 5(1) to equal treatment with respect to employment without discrimination because of race or sex, ii) under s. 5(2) to freedom from harassment in the workplace by the employer or agent of the employer because of race, and iii) under s. 7(2) to freedom from harassment in the workplace because of sex" were violated.

The Court awarded the plaintiff $30,000 in human rights general damages for these violations. In doing so, the court followed ADGA Consultants Inc. v Lane 2008 CanLii 39605 (Div. Ct.), where the court stated "...there is no ceiling on awards of general damages under the Code...". The Court also noted that the effects of the direct supervisor's conduct had a heightened impact on the plaintiff because, among other reasons, there were no sexual harassment policies in place or other mechanisms to address the conduct.

The court also awarded a number of other remedies, including general and aggravated damages, punitive damages, costs of future therapy care, and future lost income. The employer was held vicariously liable for the acts of the direct supervisor because he was the "operating mind" of the corporation and because there was a strong link between his operation of the corporation and his ability to assault the plaintiff. Accordingly, the employer was jointly and severally liable for damages arising from the direct supervisor's conduct, as well as being liable for wrongful dismissal damages.

Being Proactive in Mitigating Risk

Human rights damages awards are not new to Ontario employers. However, the fact that Ontario courts are increasingly making such awards raises the importance of having appropriate risk mitigation strategies in place. It would not be surprising to see more plaintiffs assert a human rights violation in civil (court) proceedings. Further raising the stakes are the twin considerations that human rights issues add to the complexity of civil proceedings and, unlike the inability of the Human Rights Tribunal of Ontario to award legal costs, an Ontario court can order legal costs against employers in a court proceeding involving human rights allegations.

Employers outside of Ontario are not immune from the risk of human rights damage liability. All Canadian jurisdictions have a human rights tribunal, a court, or other decision-making body that can award human rights damages against an employer.

To be proactive, employers can take a number of steps, including appropriately vetting all candidates for employment, providing appropriate training to all employees, ensuring compliance with all legislation such as the Ontario Occupational Health and Safety Act and, if appropriate, putting in place appropriate policies and procedures such as human rights policies and procedures. And, in the fact of a court (or any other official) hearing, it is often well-advised for employers to have counsel represent their interests at the hearing.

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions