Archive for the ‘Reprisal’ Category

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

Businessman

Employers can be liable for reprising against an employee who makes an allegation of discrimination in the workplace – even if the allegation is unfounded.

The Human Rights Tribunal of Ontario recently released its decision in Morgan v. Herman Miller Canada Inc. Aldeen Morgan worked for Herman Miller Canada Inc. from 2007 until 2010. Morgan alleged that his employer had discriminated against him on the basis of his colour by assigning him demeaning tasks, inappropriately disciplining him and ultimately firing him for complaining about the mistreatment he had been experiencing.

Vice-Chair Geneviève Debané found that Morgan had failed to establish that his employer had discriminated against him on the basis of his colour. The allegations of discrimination were unfounded, however Vice-Chair Debané found that Morgan genuinely believed his employer had infringed his Code rights.  Debané found that Herman Miller had failed to address the complaint, and rather terminated Morgan because of his allegations. In doing so, Debané found that Herman Miller had reprised against Morgan contrary to the Code and ordered in excess of $70,000.00 in damages.

This decision has received substantial criticism because the decision “awards significant human rights damages to an individual who had not been discriminated against in any way”. It has been called “disturbing” in a recent article by an employment lawyer. Another blogger stated:

In our time, this is what “human rights” has come down to …. punishing his employer not for treating him unfairly, but for refusing to kowtow to his threats…

Protecting employees who raise genuine concerns in the workplace related to human rights is not disturbing. What would be disturbing, in my opinion, is to allow employers to terminate employees who genuinely believe they have experienced discrimination in the workplace and who have had the courage to come forward and voice their concerns. Employers have a duty to investigate. In the absence of malice or ill intent in making the complaint, employees should be protected from reprisal. Vice-Chair Debané came to the proper conclusion in this decision.

Case Citation: Aldeen Morgan v. Herman Miller Canada Inc. and Corrado Fermo, 2013 HRTO 650

Wealth Disparity

In 2009, Adrian Monrose came to Canada under the Seasonal Agricultural Workers Program to work for Double Diamond Acres Ltd. During the course of his employment, Monrose and his fellow migrant workers were referred to as “monkeys” by persons in authority at Double Diamond. Monrose did something that migrant workers typically do not do (due to the significant power imbalance between employers and migrant workers) – he complained to management.

A couple of weeks later his employment was terminated. Following a hearing, the Human Rights Tribunal of Ontario concluded that Monrose was fired, at least in part, because he had complained about the “monkey” comment. Vice-Chair David Muir awarded Monrose $3,000.00 for damages to feelings, dignity and self-respect, stating:

Amongst the factors that I have considered in making this assessment was the applicant’s evidence of how it affected him to be referred to as a monkey by a supervisor and an owner of the company. I have also considered the context in which these incidents occurred, a greenhouse occupation in front of a number of other racialized migrant workers…

Vice-Chair Muir awarded a further $15,000.00 to Monrose for losses associated with his right to be free from reprisal, stating:

I have accepted…evidence…of the unique vulnerability of migrant workers and their understandable reluctance to stand up for their rights. The applicant did so in this case and paid a significant price for his having done so.

Monrose also received lost wages for the remainder of his contract that he would have received had he not been terminated (12 weeks), and Double Diamond was ordered to develop appropriate human rights policies and ensure that all employees with supervisory responsibilities complete human rights training.

Case Citation:    Adrian Monrose v. Double Diamond Acres Limited and Jeffrey Carreiro, 2013 HRTO 1273