Square Peg in a round hole

 

De Minimis Non Curat Lex Legal

The Latin phrase De Minimis Non Curat Lex Legal stands for the proposition that the law does not care for small or trifling matters. De Minimis was expressed in an 1818 English decision where the Court held that penalties should not be inflexibly severe where there are irregularities or very slight consequences or where the deviation was a “mere trifle” (i). De Minimis arose in the criminal context, but now is widely accepted as a common law defence available in both the criminal and civil context.

Application (or Misapplication) in the Human Rights Context

The Human Rights Tribunal of Ontario has applied this common law defence in a number of recent decisions. The problem is the Tribunal has yet to find an intelligible way to integrate this two hundred year old common law doctrine into the remedially-focused human rights world. Tribunal decisions applying this doctrine have largely arisen in contravention of settlement proceedings, where the parties resolve their dispute and one party subsequently breaches a term of settlement.

In Adorgloh v. Sentrex Communications, (ii)  a 2010 decision of the Tribunal, the Vice-Chair, before hearing any evidence or scheduling the hearing, stated by way of Case Assessment Direction that “it appears to me, without deciding the issue, that any damages for any delay of less than two months, given the amount in question…, would be minimal, assuming there is justification for awarding them.” Prior to hearing the evidence, the Tribunal made clear that it assumed the breach was minimal and did not mention the possible impact the breach may have had on Mr. Adorgloh. Following the teleconference, Tribunal found that the employer contravened a term of settlement and noted there was evidence presented that Mr. Adorgloh suffered mental health issues as a result. Despite this, the Tribunal focused solely on the technical nature of the breach itself and declined to award any remedy. In focusing on the seemingly trivial delay in payment the Tribunal failed to meaningfully consider the impact of the breach on Mr. Adorgloh. In fact, beyond noting that there was some evidence in this respect, the Tribunal did not even mention it in the analysis section of the Decision.

In Pereira v. Designer Furniture and Art, (iii) a decision released in October 2014, the Tribunal heard another contravention of settlement application where extensive evidence was proffered on the impact the contravention had on the Applicant in terms of her mental health. I was Counsel for the Applicant (no, this is not sour grapes – a much more important issue is at play) and made submissions on the application of the de minimis doctrine. I asked the Tribunal to consider the impact on the Ms. Pereira, instead of or alongside the technical nature of the breach. The Tribunal however neither mentioned the Applicant’s submissions on the application of the de minimis doctrine, nor was the impact on the Applicant mentioned at all. The Tribunal found there was a contravention but refused to order a remedy, again focusing solely on the technical nature of the breach. We asked the Tribunal to reconsider and received a boilerplate decision, again not addressing any of the Applicant’s arguments on de minimis. (iv)

It is firmly established that the Ontario Human Rights Code is remedial and not punitive. The objective is to make the Applicant whole, not punish the Respondent. So why is it that the Tribunal does not focus at all on the actual impact of the contravention on an Applicant, beyond just the technical appearance of the breach itself? Looking at the technical breach in isolation – for instance payment sent one month after it was due – may appear “trifling” or de minimis. But what if that one month delay caused an Applicant to lose his or her home or caused an Applicant dealing with serious mental health issues to fall into a depression and become unable to work for a significant period time. What if the Applicant contemplates suicide? I have represented parties in several matters where settlement has been contravened, and while not always the case, this is often the reality (particularly for applicants with serious mental health issues).

In assessing de minimis, the Tribunal must look at the impact of the contravention on the Applicant. If the technical nature of the breach is relevant at all, it should only be one factor, considered alongside the impact of the breach on the Applicant. The Respondent’s intention is irrelevant and the remedy is not to “punish” the Respondent. Remedial legislation focuses on fixing the harm caused. From my perspective, that is difficult and impossible to do when the Tribunal does not consider what that harm may be.

This highlights a bigger issue, perhaps for another article, on the dangers of parachuting common law principles into the human rights context without full appreciation as to how those principles fit with the remedial nature of the Code and established human rights principles.

End Notes

__________________________________________________________

(i) See Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 SCR 76 at paras at 200-207.

(ii) Adorgloh v. Sentrex Communications Inc., 2010 HRTO 2524

(iii) Pereira v. Designer Furniture and Art, 2014 HRTO 1599

(iv) Pereira v. Designer Furniture and Art, 2014 HRTO 1731

 

Surrounded

David and Goliath: Unrepresented Applicants versus Represented Respondents

Monetary Awards are Relatively Small

The vast majority of applications before the Tribunal do not result in significant monetary settlements or awards. There are exceptions of course (for example, see Fair v. Hamilton-Wentworth District School Board where the Tribunal ordered in excess of $425,000.00 in damages). Significant monetary awards are the exception rather than the norm however.

The Majority of Applicants are Self-Represented

Because awards are relatively small and many applicants are often unemployed at the time they contemplate bringing an application, many applicants simply cannot afford to hire lawyers who charge significant hourly rates. Perhaps this is the reason why many applicants are unrepresented. Last years for example, approximately 76% of Applicants were unrepresented at the time they filed their Application. This contrasts starkly with respondents, the majority of who have legal representation right from the start.

Access to Justice?

This presents a significant barrier to access to justice. Applicants who believe they have experienced discrimination are often left to fend for themselves in a process that is not always easy to navigate (although the adjudicators at the Tribunal are sensitive to this fact and often take steps necessary to help self-represented applicants understand the process). The impact is intensified when these unrepresented applicants are then pitted against experienced Respondent-side legal counsel. Talk about David and Goliath. Unfortunately, in the human rights context, David is too often unsuccessful.

At the very least, applicants should consult with an applicant-side human rights lawyer to discuss their case prior to drafting the Application. It is important that applicants understand the process, what the various grounds include, and what they must prove in order to be successful. This should be understood from the outset to avoid making costly mistakes right from the start. Ideally, applicants should be afforded quality legal representation to represent them through the process and ultimately at a hearing if it comes to that (keeping in mind that the majority of matters settle without the need for a full hearing).

Alternative Fee Arrangements – Applicants CAN Afford a Human Rights Lawyer

Many applicants however are under the assumption that lawyers cost several hundred dollars per hour. While this is true for some lawyers it is not always the case. Most human rights lawyers could not sustain an applicant-side practice charging hefty hourly rates. When seeking legal representation, applicants should be aware of alternative fee structures. Most lawyers who are passionate about social justice will be open to different arrangements. Some of these may include:

1. Contingency Fee Arrangement — The fee paid to the lawyer is contingent upon the amount obtained for the Applicant. For example, if the Applicant does not obtain any amount (i.e. is unsuccessful at a hearing) then the lawyer does not recoup any legal fee. The lawyer essentially shares the risk with the Applicant. Most lawyers will not agree to a straight contingency fee arrangement in the human rights context, but rather are more likely to agree to some combination of hourly rate and contingency fee arrangement.

2. Hybrid Hourly Rate/Contingency Fee Arrangement — There are a number of different combinations that can be agreed to. For example, the lawyer could represent the Applicant on a contingency fee arrangement for all work done short of the hearing (keeping in mind that most matters resolve themselves without the need for a hearing) and then an hourly rate for representation in the hearing if the matter does proceed. Alternatively, a lawyer could charge 50% of their regular hourly rate and take 20% of the amount achieved. In this scenario, the lawyer is assuming some of the risk with the Applicant by offering a reduced hourly rate in exchange for a percentage of any amount obtained.

3. Hourly Rate Arrangement — Of course there is the straight hourly rate where the Applicant is charged a set rate for every hour the lawyer expends on the Applicant’s behalf.

4. Flat Fee Arrangement — Under this arrangement the Applicant and lawyer agree to a flat fee in advance for all work done on the Application. There are also hybrid flat fee arrangements – for example, some lawyers will agree to a flat fee for all work done short of the hearing and then an hourly rate for representation during the hearing (again keeping in mind that the majority of matters resolve themselves prior to a hearing).

It is worthwhile for applicants to think about fee structures prior to their consultation. What fee structures a lawyer may agree to will be dependent on the size of the lawyer’s practice, the number of clients they have, their particular law firm, etc. It is important that applicants feel comfortable with the lawyer they choose to represent them. Remember, all lawyers are different in terms of the retainer and fee structure they are willing to enter into. You should be able to find quality legal representation under terms that you can afford.

If you require assistance with your human rights matter or would like to book a legal consultation please contact Wade Poziomka.

goldfish jumping - improvement and career concept

Departing from Previous Cases – A Step in the Right Direction

The British Columbia Human Rights Tribunal recently awarded $75,000.00 as general damages, signalling that human rights damages are on the rise – and it’s about time.

In Kelly v. University of British Columbia (No. 4), Adjudicator Enid Marion, considered a case in which Kelly, who possessed a medical degree, was unable to complete his medical residency at the University of British Columbia and was ultimately terminated from the program, in part due to his disabilities – ADHD and a non-verbal learning disability. Due to his termination from the program, Kelly found it very difficult to find other work. After all, why would someone with a medical degree be looking for jobs other than physician positions?

In an earlier decision, the Tribunal found that UBC had discriminated against Kelly and failed to accommodate his disabilities. As a result, he was reinstated into the residency program, approximately six years after he had been terminated. In the decision on remedy, the Tribunal ordered lost wages for what Kelly would have earned had he been accommodated in the first instance. Over a six year period, this amount totalled $385,194.70. This should not be surprising to anyone. Human rights remedial principles are intended to make those experiencing discrimination “whole”, or to put them in the position they would have been in had they not experienced discrimination. Physicians earn significant incomes. Kelly’s full income potential was delayed by approximately six years and this amounted to a large lost wages award.

The true significance of this decision however is the high general damage award – $75,000.00 for injury to dignity, feelings and self-respect. The Tribunal stated at paragraph 101:

…it is relevant and principled to consider that Dr. Kelly was pursuing an almost life-long desire to become a physician and that the loss of that opportunity had a serious and detrimental impact on him, particularly within the context of his family dynamics. (His father was a physician and Kelly intended on working with him). Dr. Kelly suffered deep humiliation and embarrassment as a result of the discrimination, which was ongoing for a significant period of time. He experienced symptoms of depression, including a lack of interest in life, trouble sleeping, and other health-related problems.

There is no question that the general damage award in this case departs from  the general trend in human rights. General damages in Ontario typically range between $10,000.00 to $20,000.00 (with the majority of decision-makers awarding $15,000.00). There will be those who argue that a $75,000.00 award, well above the average, is uncalled for in a case where Kelly was reinstated into the program, successfully completed it and became employed as a physician. While many will criticize the decision for departing from the established trend and previous cases, perhaps it is the established trend and previous cases that should be criticized.

$10,000.00, $15,000.00 and $20,000.00 cannot be said to be more than a “slap on the wrist” for most large organizations. Admittedly, it is difficult to quantify the harm caused by discrimination, but awards should not be so low that they are seen as a licensing fee to discriminate. General damages should adequately compensate those who have experienced discrimination. Larger awards like this one will certainly impact companies and frankly, they should. Maybe employers will think twice in the future and start to take human rights more seriously.

We can only hope that Ontario will follow suit and move away from the unwritten $15,000.00 standard. In the last year, Ontario has signaled that it may be willing to follow British Columbia’s lead (see Fair v. Hamilton Wentworth District School Board, 2013 HRTO 440 where the Ontario Tribunal ordered $30,000.00 in general damages).

Citation

Kelly v. University of British Columbia, 2013 BCHRT 302 (Click here for a full copy of the decision)