Archive for the ‘Human Rights Tribunal of Ontario’ Category

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.

figur gleichberechtigung

Vanderputten was hired by Seydaco Packaging Corp. as a general labourer in 2003. After working for Seydaco for a number of years, Vanderputten was accepted into the gender identity clinic at CAMH and began her transition from living as a man to living as a woman. Vanderputten later changed her first name to Maria, underwent hormone treatment followed by genital reconstruction surgery.

As Maria was transitioning, her coworkers took notice, and she was subjected to harassment in the workplace. Employees at Seydaco changed into work uniforms prior to the start of their shift. Maria asked management to modify her shift hours so she could change privately, without her male colleagues present, who would often make inappropriate comments to her. Seydaco refused her request. The Tribunal stated at paragraph 70:

Seydaco failed to consider, explore, or implement any solutions that would have allowed the applicant privacy while changing, despite the fact that she told them about the problems she was experiencing…

At the very least this amounts to a violation of the procedural component of the duty to accommodate. In a 47,000 square foot plant, it’s highly unlikely Seydaco could not have arranged for Maria to change, away from her male colleagues. Seydaco failed to understand Maria’s reality. It insisted that Maria would be treated as male until her transition was completed and she was able to provide medical verification that she was female. Associate Chair David A. Wright, as he then was, found that Seydaco had discriminated against Maria, stating at paragraph 66:

Insisting that the applicant be treated in the same manner as men until her transition was fully complete was discrimination. It failed to take into account the applicant’s needs and identity. The insistence that a person be treated in accordance with the gender assigned at birth for all employment purposes is discrimination because it fails to treat that person in accordance with their lived and felt gender identity. For non-transferred people, their identity will reflect the sex assigned at birth based on their genitals. However, for transferred people, insisting on their treatment in accordance with their birth gender for all purposes is discriminatory because it fails to take into account their lived gender identity.

The Tribunal ordered that Seydaco pay $22,000.00 in general damages to Maria, lost wages for a period of 8 months, and further ordered that Seydaco obtain an expert, at its own expense, to develop and implement a human rights policy, as well as train all management employees on how to administer the policy. In determining the appropriate length to award lost wages for, the Tribunal stated at paragraph 93:

In deciding how long lost wages should in order to put the applicant in the position she would have been had the discrimination not occurred, I take into account the fact that she had a discipline record that may have led to further discipline unconnected with prohibited grounds, the applicant’s seven years of services (with a brief gap), the notorious fact that in 2010 the economy was experiencing a downturn, and the fact that at the time she was dismissed she was undergoing the process of sex reassignment, which would have made finding a job harder, given general prejudice in society against transgendered persons.

Associate Chair Wright recognized, quite correctly, that discriminatory attitudes at large impact Trans persons’ ability to obtain alternative employment. The length of time that Maria would be provided lost wages for was increased due to this troubling reality. As Trans issues gain popularity and more cases make their way before courts and tribunals, we can only hope that employers will deal with issues that may arise respectfully and sensitively, ensuring that all employees in Ontario are able to work safely and with dignity, regardless of gender identity. In the meantime, until discriminatory attitudes are eliminated, the HRTO should continue to deal harshly with ignorant and insensitive employers.

CASE CITE: Vanderputten v. Seydaco Packaging Corp., 2012 HRTO 1977

See No Evil

It is very common for Applicants to settle their Application prior to a Hearing before an adjudicator. Applicants choose to settle for a number of different reasons. Very rarely however do applicants believe the settlement adequately compensates them for their losses (economic losses and pain, humiliation, and loss of dignity). Rather they settle for a variety of other reasons, including:

  • Inability or unwillingness to “re-live” the events giving rise to the Application;
  • The length of time it takes to get to the Hearing can deter Applicants who want to “move on” in their life and put the events behind them;
  • Health issues;
  • Applicants often have concerns with the fact that Tribunal decisions are made public and published on the internet at CanLII. Potential employers in the future may search the internet and discover that Applicants have commenced a human rights proceeding in the past against a previous employer and decide  not to hire them (this is a legitimate concern because such decisions by prospective employers are often very difficult to prove, even though a decision not to hire an employee on the basis of a previous human rights application however would constitute reprisal contrary to section 8 of the Code), and
  • Risk-benefit analysis (Applicants are often in a poor financial situation following discrimination and if they are unable to prove their case before the Tribunal they will not receive any monetary award – A bird in the hand is worth two in the bush or so the old saying goes).

Applicants make significant sacrifices, both economically and emotionally, when deciding to settle. There is frequently an economic power imbalance between Applicants and Respondents. For many Applicants, they cannot afford to wait for or go through a hearing. The same cannot often be said for Respondents. Recognizing the particular vulnerability of those who have alleged discrimination, it is very important that Applicants have confidence that the settlement entered into will be honoured by the Respondent or the Tribunal will intervene appropriately.

There have been a line of cases recently, where Respondents have breached the terms of settlement. Most often, the Respondent has refused to pay or has delayed payment. While many may believe delayed payment is not a “big deal”, to an Applicant who is in dire need of money, it is a “very big deal”. A contravention of settlement also forces the Applicant to turn his or her mind to the issues once again, worry about whether or not they will receive the monetary amount, and have to deal with legal counsel if they are represented, likely incurring additional legal fees. Given the gravity of a breach of settlement, the Human Rights Tribunal should respond aggressively to discourage such acts. To date however, the Tribunal’s response has been lacking.

The Tribunal’s Response to Settlement Contraventions

The Ontario Human Rights Code gives the Tribunal the authority to make any order it considers appropriate to remedy a breach of a settlement agreement.[i] Here is an overview of some of the Tribunal’s recent contravention of settlement decisions:

In Xitimul v. Marriott Hotels[ii] the Respondent was 11 days late in making payment. The Respondent explained that the delay occurred as it had to reissue payment due to a tax deduction error with the initial payment. The Tribunal ordered $150.00 as monetary compensation for the contravention of settlement.

In Weitzmann v. Burns[iii] the Respondent failed to pay the settlement amount of $1,500.00 to the Applicant, explaining that the failure to pay was due to “minor health issues” which “led to serious health issues which he attributed to the applicant’s conduct towards him”. The Tribunal ordered the original $1,500.00 amount be paid. In addition the Tribunal ordered an additional $500.00 as a remedy for the contravention of settlement.

In Schenk v. Nixon[iv] the Respondent failed to pay $25,000.00 to the Applicant pursuant to the Minutes of Settlement. The Respondent explained the failure to pay, claiming to be in dire financial circumstances and “impecunious”. The Tribunal ordered the amount to be paid forthwith, however in the event that they are not paid the Respondent was required to deliver an irrevocable direction to his lawyer to pay the amount from the proceeds of another civil action where the Respondent was a Plaintiff. As a remedy for the contravention of settlement, the Tribunal ordered an additional $1,000.00.

In Medeiros v. Cambridge Canvas Centre[v] the Respondent failed to pay the settlement amount sum of $5,000.00. The Respondent argued that the Applicant breached the confidentiality provision in the terms of settlement and relied upon this alleged breach as an explanation for its failure to pay. The Tribunal ordered the Respondent to pay an additional $1,500.00 to remedy the contravention of settlement.

In Bailey v. Rock With Us Marble & Granite[vi], the most recent contravention of settlement decision (released by the Tribunal in September, 2013), the Respondent agreed to pay the Applicant $7,000.00 in seven installments. The Respondent was delayed in paying the settlement funds. After the Applicant filed an Application for contravention of settlement, the Respondent provided the remainder of the cheques owing. When the Applicant cashed the cheques however, they were rejected for “insufficient funds”. The Tribunal ordered the remainder of the amount owing to be paid and an additional $1,000.00 for monetary compensation arising out of the breach of settlement.

Conclusion

By the time Applicants get to mediation, they very rarely trust the Respondent. If Applicants feel they cannot count on the Tribunal to respond appropriately to contraventions of settlement, we may experience a “chilling effect” and significant decrease in the number of cases that settle.

Damages in the range of $150.00 to $1,500.00 may be insufficient to compensate Applicants for additional harm suffered and discourage future contraventions of settlement.  These damages seemingly do not reflect the fact that Applicants in these situations are typically “re-victimized” and put to greater expense and emotional turmoil with yet another Application to the Tribunal to recover what they are already entitled to.

END NOTES


[i] Section 45.9(8) of the Ontario Human Rights Code states that the Tribunal can “make any order that it considers appropriate to remedy the contravention”.

[ii] Xitimul v. Marriott Hotels, 2011 HRTO 1867

[iii] Weitzmann v. Burns, 2011 HRTO 818

[iv] Shenk v. Nixon, 2011 HRTO 1312

[v] Medeiros v. Cambridge Canvas Centre, 2011 HRTO 1519

[vi] Bailey v. Rock With Us Marble & Granite, 2013 HRTO 1510