Focus: Is it better to litigate human rights in court or at HRTO?

It has been five years since the government amended the Human Rights Code to allow people to bring human rights issues as civil litigation claims rather than taking them to the Human Rights Tribunal of Ontario. Despite this plaintiffs’ community’s embrace of the change as a boon to strategic flexibility and settlement options, there are no trial decisions to date.

Janice Payne at Nelligan O’Brien Payne LLP in Ottawa agrees that not a lot has happened in the form of decisions but reports there’s great comfort with pleading claims for damages related to human rights breaches. Payne recalls that when the amendments took effect, there was speculation as to whether the courts would take their jurisdiction as far as ordering reinstatement. “We weren’t sure how comfortable they’d be given that traditionally they don’t order reinstatement, they order damages.”

Five years on, lawyers still aren’t sure how the courts will address these claims when they finally reach trial. Payne’s partner Denise Workun says the decisions to date have involved motions brought by defendants seeking to strike out pleadings that include human rights claims. “The courts have allowed these claims to go forward, but so far we have only seen decisions at a very preliminary stage of the process.”

Ron Franklin, an employment and human rights lawyer in Toronto, speculates that the lack of cases is a result of the “space for settlement” that a civil proceeding creates. “In my experience, pleading human rights complaints in the courts is a strategy that has always led to settlement. The benefit from the plaintiff’s perspective is that it puts more fire under the employer’s feet and makes them more open to responding in a way that meets the clients’ needs.”

In a wrongful or constructive dismissal case involving discrimination or harassment, Franklin finds that typically what the client is upset about isn’t the dismissal itself but the way the employer did it. “The win for the client is that generally, human rights damages are not taxable, whereas if they get 12 months of wages, a lot of that goes to the CRA. If you can characterize a significant amount as human rights damages, it allows the employer to pay a little less than they would otherwise and the employee sees more benefit. So there’s an opportunity to settle for lower global amount without reducing what goes into the employee’s pocket. Employers are open to that.”

There’s also a clear benefit to litigating all of the issues in one forum, according to Kumail Karimjee of Karimjee Greene LLP. “Bearing in mind that civilly, you must also have a stand-alone civil cause of action, in many cases you have multiple claims that are interconnected. They can now be dealt with in one proceeding.
When you proceed to the Human Rights Tribunal, you could end up with a situation where you lose on the human rights issue and are then out of luck with the other issues because the tribunal does not have civil jurisdiction.”

Payne agrees. “Instead of having a couple of proceedings going on and trying to settle them all at one mediation or one pretrial conference, now they are all dealt with in one place. That allows more legitimate creativity around settlement. The nature and extent of the claims often can’t bear the expense of a trial unless there are truly unusual circumstances. As strongly as the employee feels at the start, inevitably they will look for a way to settle so the plaintiff can get on with their life and the defendant, too.”

On the other hand, Workun feels the Human Rights Tribunal has been consistent at moving fairly quickly to mediation. “Tribunal mediations can be cost-effective because you do not have to prepare costly mediation briefs.”

In the civil courts, the parties can also get to mediation fairly quickly but the preparation is more expensive and they have to pay for the services of the mediator who may not have any human rights expertise. “The court-connected mediators can facilitate the mediation process, but without specific human rights expertise they would not be as equipped to give insight to the parties,” says Workun.

Another contrast is the inability to recover costs at the tribunal. “Applicants may recover on the merits of the legal case but will still have to pay their legal fees,” says Workun.

“Of course, that can be flipped the other way. In civil claims, plaintiffs are at risk of having costs ordered against them. Going to the tribunal eliminates their risk on the cost side.”

Karimjee prefers to litigate larger cases in civil court because of the prospect of recovering costs and the benefit of trying the issues in one forum. He also appreciates the full set of procedural rights the civil courts offer. “For example, if you’re dealing with a complex case, rights to discovery are very advantageous.
If there are multiple incidents and significant issues of credibility, full discovery is a big advantage.”

Karimjee also believes the court offers the prospect of higher awards. “In my experience, Human Rights Tribunal members conducting mediations will often lean strongly towards very small numbers. They will remind you that the average case will land between $5,000 and $15,000. That’s the frame they look at cases through, whereas if you sit down with a pretrial judge, they often recognize the costs that go into litigation. When it’s time to talk about settlement with a Superior Court judge at a pretrial, they typically won’t be focused right from the get-go on very small numbers.”

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