286Woiden v Lynn One of the complaints was based on family status. Back to book Page ‣
287Bushey v Sharma This award was made against the personal respondent and was found to be solely attributable to his offensive actions as a separate sum had been paid by the employer.Back to book Page ‣
290The distinction is important, particularly in Ontario. The general reprisal violation attracts deemed employer liability whereas the specific sexual solicitation provision does not. Back to book Page ‣
291This is generally accepted to be so. See Cassidy v Canada Post, CHRT.Back to book Page ‣
292A good example of this is found in Smith v Menzies in which the finding of general reprisal was influenced by the close proximity between the complaint of offensive conduct and the dismissal the following day and the lack of any credible evidence from the employer to explain this decision.Back to book Page ‣
293see Jones v. Amway of Canada Ltd. [2002] O.J. No.1504 (Ont. Div. Ct.) Back to book Page ‣
294Murchie v JB’s Mongolian Grill (Hendriks); deSouza v. Gauthier (2002), 43 C.H.R.R. D/128; Elkas v. Blush Stop Inc. (1994), 25 C.H.R.R. D/158 (Ont. Bd. Inq.); and Entrop v. Imperial Oil Ltd. (No.7) (1995), 23 C.H.R.R. D/213, affirmed on other grounds 108 O.A.C. 81 (Ont. Div. Ct.), and reversed on other grounds 2000 CanLII 16800 (ON CA), (2000), 189 D.L.R. (4th) 14. Back to book Page ‣
296The Canadian HRT found that the test was not intent but rather whether the retaliatory conduct could be “reasonably perceived” as such, as in Warman v Winnicki. Back to book Page ‣
297Entrop v. Imperial Oil Ltd. (No. 7) (1995), 23 C.H.R.R. D/213 (Ont. Bd. Inq.) Back to book Page ‣
298Talkkari v. City of Burnaby and others, 2005 BCHRT 68, paras. 45-47; C.S.W.U. Local 1611 v. SELI Canada and others (No. 3), 2007 BCHRT 423 Back to book Page ‣
299Entrop v. Imperial Oil Ltd. (No. 7) (1995), 23 C.H.R.R. D/213 (Ont. Bd. Inq.) Back to book Page ‣
300The Board found that at least some of these actions were taken deliberately by Imperial Oil in retaliation for Entrop’s filing of a complaint. That finding is reasonably supported by the evidence. In my view, the evidence on Entrop’s reassignment together with the finding of general reprisal support the Board’s conclusion that Imperial Oil’s conduct was wilful and reckless and thus justifies the award of damages for mental anguish. I would therefore not give effect to this ground of appeal. (as the Code then stood, mental anguish damages were allowed –ed) Back to book Page ‣
301This was also found as the law inJones v. Amway of Canada Ltd., in which the Divisional Court stated “we have great difficulty appreciating how there can be a breach of section 8 without an intent to perpetrate the prohibited conduct…” Back to book Page ‣
302The Alberta Court of Appeal in Walsh v Mobil came to the same conclusion. Back to book Page ‣
303The Nova Scotia decisions have also required intent to be proven, as in Smith v Capital District. Back to book Page ‣
304The Nova Scotia Court of Appeal came to the same view, although it did not affirmatively decide this issue. Back to book Page ‣
306Cariboo Chevrolet v Becker. This decision was based on the wording of the B.C. statute. It remains the law today. It makes no sense whatsoever. It will require a legislative amendment. Back to book Page ‣
307Noble v.York University (Gottheil) this provides a good review of the tests referenced above. The actual reprisal claim failed in this instance. Back to book Page ‣
309Morgan v Herman Miller (Debane). The general reprisal claim resulted in a lost income claim of 14 months and the substantive claim was dismissed. Back to book Page ‣
311Ornelas v. Casamici Restaurant, 2010 HRTO 1078 (CanLII), 2010 HRTO 1078 (CanLII), 1522491 Ontario Inc. v Stewart, Esten Professional Corp, 2010 ONSC727(CanLII), 2010 ONSC 727 (CanLII) (Div.Ct.) Back to book Page ‣
312Ornelas v Casamici Restaurant (Price), which concluded that the principle of absolute privilege rules the day with respect to the threat or commencement of litigation. Back to book Page
315A point which was noted in Ornelas v Casamici Restaurant (Price), which concluded that the principle of absolute privilege rules the day with respect to the threat or commencement of litigation. Back to book Page ‣
316As in Smith v Menzies Chrysler (Chadha) in which $25,000 was awarded strictly for general reprisal. Back to book Page ‣
317As in Desousa v Gauthier (DeGuire); and Murchie v JB’s Mongolian Grill (Hendriks); Garofalo v Cavalier Hair Stylists, (Bhattacharjee); and in Morgan v. Herman Miller Canada Inc. in which $15,000 for general reprisal and the failure to investigate jointly.Back to book Page ‣
318In Baylis-Flannery v DeWilde (Hendriks), a claim was allowed for lost income and also awarded an increase in the rate of pay which had been withheld. Back to book Page ‣
321Smith v Menzies Chrysler (Chadha)The awards made included $15,000 for general reprisal, $25,000 due to the poisoned work environment. Awards were also made personally against two employees in the sums of $8,000 and $2,000 each for sexual harassment. Back to book Page ‣
322This presumes no application of the organic theory of liability. Back to book Page ‣
323Nova Scotia’s Human Rights Act is a good example. It defines “sexual harassment” to mean “a reprisal or threat of reprisal” …”for rejecting a sexual solicitation or advance”.Back to book Page ‣
324Canada, Manitoba, Yukon and New Brunswick Back to book Page ‣
325The origin in Ontario for example is s.5(1) which says nothing directly to this effect.
5(1) Every peron has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.
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327Board of Inquiry in Ghosh v. Domglas Inc. (No. 2) (1992), 17 C.H.R.R. D/216 Back to book Page ‣
328A similar finding was made in Farris v McKeague and Leonard. (Martin) (reversed in Divisional Court on unrelated grounds). The employer had allowed a climate of antipathy of Ms. Farris, based on an incorrect rumour that she was having an affair with Leonard. Peer agents referred to her in very unflattering and insulting terms.These findings and the rumour of the affair constituted a poisoned work environment as found by the Tribunal. Mr. McKeague had disciplined the staff person who started the rumour and the staff was further cautioned to desist in such conduct. At a final meeting to discuss this issue, Ms. Farris was blamed for her conduct.It was determined action had to be taken to resolve the apparent work environment, which resulted in the termination of Ms.Farris.The Tribunal found that the employer had not taken sufficient remedial action to correct the circumstance and that the termination was also a reprisal. Back to book Page ‣
330A damage award for this particular violation was set at $5,000.Back to book Page ‣
331Heintz v Christian Horizons (Gottheil). The case went to Divisional Court on an unrelated submissions, based on its defence as a religious organization and also this issue. It agreed with the Board decision. Back to book Page ‣
333see Smith v. Ontario (Human Rights Commission), 2005 CanLII  2811 (ONSCDC),  and Naraine v. Ford Motor Company [1996] O.H.R.B.I.D. No. 23; aff’d 124 O.A.C. 39 (Ont. Div. Ct.); rev’d 2001 CanLII 21234 (ONCA), (2001), 209 D.L.R. (4th) 465 (Ont. C.A.); leave to appeal refused [2002] S.C.C.A. No. 69.Back to book Page ‣
336Smith v Menzies (Chadha) HRTO. The awards made included $15,000 for reprisal, $25,000 due to the poisoned work environment. Awards were also made personally against two employees in the sums of $8,000 and $2,000 each for sexual harassment. There was no lost income claim as the applicant had found alternate employment and suffered no loss.Back to book Page ‣
338Intent or motivation, of course, is not the test. Ontario (Human Rights Commission) and O’Malley v. Simpson-Sears Ltd Back to book Page ‣
339See Naraine v. Ford Motor Co. of Canada (No.4) (1996, 27 C.H.R.R. D/230 (Ont.Bd. of Inq.) upheld (1999), 34 C.H.R.R. D/405 (Ont. Div. Ct.); Moffatt v. Kinark Child and Family Services, [1998] O.H.R.B.I.D. No. 19.Back to book Page ‣
340Divisional Court in Smith and Ontario(Human Rights Commission) v Mardana in setting aside the Board’s decision Back to book Page ‣
341As is allowed by Section 46.1 of the Ontario Human Rights Code when there is an accompanying civil action Back to book Page ‣
342these awards have been made in the context of a person who has been terminated due to allegations of serious misconduct, such as sexual harassment.Back to book Page ‣
344Walton Enterprizes v Lombardi is the leading Divisional Court case on this subject.Back to book Page ‣
346Laskowska v Marineland of Canada Back to book Page ‣
347Wall v. University of Waterloo (1990) 27 C.H.R.R. D/44 (Ont. Bd. Inq.), at paragraph 160 Back to book Page ‣
349The Tribunal also referenced the use of the Human Resources Department Back to book Page ‣
351To the same end is Torrejon v. 114735 Ontario, 2010 HRTO 934 (CanLII) Back to book Page ‣
352As noted below there has been case law adverse to the theory of this award. This case was decided in January of 2014 while that of the Divisional Court, discussed below of Walton Enterprizes, was released in July of 2013. It was not referenced in the reasons of the Tribunal and presumably was not argued.Back to book Page ‣
355Horner v. Concord Security Corporation, 2003 BCHRT 86, paras. 30-32 and Wilkie v. ICBC, 2005 BCHRT 318, paras. 4-6. Back to book Page ‣
356Williamson v. Mount Seymour Park Housing Co-operative and others, 2005 BCHRT 334, Back to book Page ‣
359Such was the result in Disotell v Kraft. Back to book Page ‣
360For example Fair v Hamilton-Wentworth District School Board, (Joachim), affirmed by the Divisional Court in September 2014, and in turn by the Court of Appeal in May of 2016. The initial lost income award was 8.5 years and continued to accrue until the Court of Appeal decision. Reinstatement was also awarded. Back to book Page ‣
361Ontario’s OHSA has been amended by Bill 132 which is in effect as of September 8, 2016. “Workplace harassment” has been defined to include “workplace sexual harassment”. The amended provisions include the need to have the workplace anti-harassment program provide identity protections to the complainant (unless disclosure is necessary for the investigation or corrective action) and to allow for a different reporting mechanism where the supervisor is the alleged harasser and to consider how the employee will be advised of the results of the investigation and any corrective action.In addition the employer must ensure that an appropriate investigation is conducted of all incidents and complaints of workplace harassment, that the worker be advised in writing of the results of the investigation and of any corrective action. Back to book Page ‣
363The definition of which includes “(a) the attempted or actual exercise by a worker towards another worker of any physical force so as to cause injury, and includes any threatening statement or behaviour which gives the worker reasonable cause to believe he or she is at risk of injury, and (b) horseplay, practical jokes, unnecessary running or jumping or similar conduct Back to book Page ‣
364Occupation Health and Safety Regulations NWT 039-2015 Section 34(1) sexual harassment Back to book Page ‣
369Pchelkina v Thomsons (Wright); Morrison v. Motsewetsho (No. 2), 2003 HRTO 21 (CanLII), 2003 HRTO 21 at para. 224.Back to book Page ‣
371The Supreme Court of Canada in its 2011 decision in Canada (Canadian Human Rights Commission) v Canada(Attorney General), generally referenced as “Mowat”Back to book Page ‣
372There was one decision before Mowat in Curlingv.Torimiro (Laird) but it is foreclosed by Mowat. It involved serious allegations of employer wrong doing. Back to book Page ‣
373The Ontario Court of Appeal in Impact Interiors (1998) 35 CHRR D/477 set aside the Divisional Court decision denying PJI and restored the award of the Board of Inquiry allowing for same Back to book Page ‣
374There are contrary decisions which are not well reasoned as in Pilon v The City of Cornwall (Muir); Piechocinski v Toronto Standard Condominium Corporation (Muir).Back to book Page ‣
376MacKinnon v Cel tech Plastics as is consistent with s. 128 of the Courts of Justice Act in Ontario. Back to book Page ‣
377Henry v Consumer Contact (Bickley);Pchelkina v. Tomsons, 2007 HRTO 42 (CanLII), 2007 HRTO 42 at para. 31. Back to book Page ‣
379Newfoundland allows a judicial review application, Alberta provides for an appeal to the Chief of Commissioners and Tribunals and a further judicial review of that decision to a judge, NWT allows an appeal to the Adjudicative Panel, The Yukon provides for an appeal to a Supreme Court justice. Back to book Page ‣
382upheld by Divisional Court, leave to appeal to the Court of Appeal granted May 1, 2015 Back to book Page ‣
383The Ontario Court of Appeal in Ontario Human Rights Commission v Naraine, (leave to appeal to SCC refused [2002] SCCA No. 69) The reinstatement order below was set aside but not for a jurisdictional reason.Back to book Page ‣
384Wilson J., in her dissenting opinion in The Supreme Court of Canada decision of McKinney v University of Guelph, voiced a strong view in support of reinstatement as a remedy in an age discrimination case, noting the specific factors of the age of the plaintiffs, the particular prejudice suffered by them and the need to redress the wrong. The majority held against the plaintiffs in the action and hence did not address the issue of remedy. Back to book Page ‣
385Nilsson v University of Prince Edward Island agreed with the words of Wilson J. and ordered reinstatement in age discrimination case. Back to book Page ‣
386Segrave v Zeller’s Limited (Lederman); Rajput v Algoma University College (Tarnopolsky); The Board of Inquiry (Cumming) followed in the 1977 decision of Singh v Security and Investigation Services Limited; Snyker v The Fort FrancesRainy River Board of Education (Ratushny); Hall v Borough of Etobicoke Fire Department (Dunlop); Hartling v City of Timmins (Cumming); Rand and Canadian Union of Industrial Employees v Sealy Eastern Limited, Upholstery Division 3 CHRR D/938 (Cumming); Olarte et al v Commodore Business Machines Ltd. (Cumming) 4 CHRR D/1705, in which the reinstatement order was refused, the case was upheld in Divisional Court but this issue was not raised;Cameron v Nel-Gor Castle Nursing Home 1984 5 CHRR D/2170; Mark v Porcupine General Hospital (Cumming) 6 CHRRD/2538; Barnard v Canadian Corps of Commissionaires (Friedland). This case went to Divisional Court but not on this issue; Ontario Human Rights Commission and Karumanchiri et al v Liquor Control Board of Ontario 8 CHRR D/4076 (Baum), affirmed in Div Ct. Divisional Court 9 CHRR D/4868; Wiens v Inco Metals (Cumming) 9 CHRR D/4975; Morgoch v City of Ottawa; McKinnon v Ministry of Correctional Services #3 Back to book Page ‣
387Cameron v Nel-Gor Castle Nursing Home 1984 5 CHRR D/2170. Back to book Page ‣
388Naraine v Ford Motor Co. of Canada #5 28 CHRR D/267, Back to book Page ‣
389Reversed by the Court of Appeal on other grounds. Back to book Page ‣
390On this subject, the Board noted the decision of the Federal Court, discussed below, in Pitawanakwatin which the Federal Court overturned the Tribunal decision which saw reinstatement as “a recipe for disaster”.Back to book Page ‣
391Now Mr. Justice Cummings of the Ontario Superior Court Back to book Page ‣
395See Impact Interiors Inc. v. Ontario (Human Rights Commission) (1998), 35 C.H.R.R. D/477 (Ont. C.A.) Back to book Page ‣
396A case of the same genre, albeit not purely an employment reinstatement decision, is the May 2103 remedy segment of Chaudhry v Choice Taxi (Reaume).The applicant was a cab driver who had requested dispatch services from the respondent and with it the right to become a shareholder.
The Tribunal ordered that the company provide the applicant with the first available opportunity to become a shareholder.
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399Alberta Union of Public Employees v. Lethbridge Community College, 2004 SCC28 (CanLII), [2004] S.C.R. 727, 2004 SCC 28 (CanLII), at para. 56.Back to book Page ‣
400Dhamrait v JVI Canada (Flaherty), a small company; Back to book Page ‣
401In Krieger, it was noted that the respondent was a large and sophisticated employer; It was also unionized which was not specifically addressed as a factor, although it was stated that he applicant has the support of the Association as a reason for finding that reinstatement was viable; Fair v Hamilton-Went worth District School Board noted the size of the employer; Back to book Page ‣
402Suggesting a distinction to be found in Krieger in Macan v Strongco (Renton); Back to book Page ‣
403again suggesting a distinction of Dhamrait, as put forward also in Macan v Strongco (Renton); Back to book Page ‣
404One again in Macan v Strongco (Renton); Back to book Page ‣
405in a decision of the British Columbia Human Rights Tribunal in J.J.v Coquitlam School Board (Beharrell);Nova Scotia Board of Inquiry in McLennan v MacTara. This was not the sole reason given to deny the remedy.Back to book Page ‣
406upheld by Divisional Court, leave to appeal to the Court of Appeal granted May 1 , 2015 Back to book Page ‣
408Rajput v Algoma (Tarnopolsky); Olarte v Commodore (Cumming); Board in The decision of Baum in Karumanchiri, Divisional Court rejected the argument as the incumbent Parker clearly had notice of the remedy being sought; 1967 Court of Appeal decision of Re Bradley v Ottawa Professional Fire Fighters Association; There is no further guidance on the requirement to give notice in such instance in human rights administrative process, apart from the Divisional Court decision which clearly advocates such a concept. It would appear to be a prudent strategy to do so. Back to book Page ‣
409Canadian Human Rights Act which by section 53 provides specifically for such a remedy:Bernard v Waycobah Board of Education; Other decisions which have awarded reinstatement under the federal statute include Audet v CN (Hadjis), Chander v Canada (Tribunal – Norton, Ellis and Ramcharan ); upheld on review Chander v Canada (Federal Court), Eyerley v Seaspan ( Sinclair) , Grover v National Research Council (Fleck, Goldhar and Jordan), and Grover v National Research Council#2 (Fleck, Goldhar & Jordan), Cruden v Canadian International Development Agency (Marchildon), Parisien v Ottawa-Carleton Regional Transit (Hajdis), Cremona v Wardair Canada Inc. # 3 20 CHHR D/398, McAvinn v Strait Crossing BridgeLimited (Deschamps) , Singh v Statistics Canada (Mactavish).Back to book Page ‣
411FederalCourt decision allowed her application. Back to book Page ‣
412Canadian Human Rights Tribunal in Nkwazi v Canada(Correctional Services) (Mactavish); Desormeauxv Ottawa-Carleton (Mactavish), This decision was set aside on a preliminary review and subsequently restored by the Court of Appeal. These decisions did not deal with remedy. Back to book Page ‣
414As was upheld by FederalCourt on judicial review. Back to book Page ‣
415McLennan v MacTara This was not the only reason given to deny the remedy .Back to book Page ‣
416Kalyn v Vancouver Island Health Authority;(Tyshynski); J.J.v Coquitlam School District. The tribunal decision was set aside on first review and then restored by the Court of Appeal; in Wyse v Coastal Wood Industries Back to book Page ‣
418As was stated in the decision of Pitawanakwat, one might question the significance of ill will created by the litigation process, given it was the employer’s action which gave rise to the need to commence the process. Back to book Page ‣
420Merrick v Ipsco Saskatchewan Inc. (No. 3) 65 CHRR D/220) (drug dependency) Back to book Page ‣
421City of Regina v Kivela; An award for lost wages was made for five years from 1999 to 2003 and also the City was ordered to offer re-employment to such a permanent position when one was available.The Court of Appeal upheld the substance of the decision.(disability) Back to book Page ‣
422Labour and Employment Board of New Brunswick in Way v Department of Education (mandatory retirement) Back to book Page ‣
423A contra finding was made in A. A. v New Brunswick (Department of Family and Community Services) [2004] N.B.H.R.B.I.D. No 4 (“A. A.”)Back to book Page ‣
424A.B v Brunswick News, although it was not ordered in this case.Back to book Page ‣
425McLennan v MacTara I have considered and rejected Mr. McLellan’s request for reinstatement. I do so for several reasons:
1. I do not know whether there is a vacant entry position to which to restore Mr. McLellan;
2. I have already explained that Mr. McLellan’s termination was not exclusively the result of physical disability discrimination. He was terminated with notice;
3. Mr. McLellan doubts that reinstatement would be a positive experience for himself;
I do not believe that it would benefit the public interest, or serve any instructive purpose for MacTara, in any way.
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427Hayes v Yukon College 67 CHRR D/408 (Evans, Tkachuk and Riseborough) Yukon Human Rights Board of Adjudication (liver disease) Back to book Page ‣
429Hargrove v Phoenix Glass (Bernd Walter), a 2012 decision of the British Columbia Human Rights Tribunal in which the employer moved to dismiss on the submission of no reasonable prospect of success under section 27-1-c of the Code Back to book Page ‣
430West Fraser Mills Ltd. (Skeena Sawmill Division) v. United Steelworkers of America, Local I-1937, 2012 BCCA 50 (CanLII) Back to book Page ‣
432West Fraser Mills Ltd. (Skeena Sawmill Division) v. United Steelworkers of America, Local I-1937, 2012 BCCA 50 (CanLII), 2012 BCCA 50.Back to book Page ‣
433in its December 2008 decision of Hayes v Yukon College 67 CHRR D/408 (Evans, Tkachuk and Riseborough) Back to book Page ‣
4351982 award of Re DeHaviland Aircraft and UAW local 112 [1982] OLAA No. 123, 9 LAC (3d) 271 (Rayner) which was later referenced in another cited case of Re Harris Rebar and BSIOW local 734 [1988] OLAA No.107, 35 LAC (3d) 348 (Dunn) Back to book Page ‣