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Features
Human Rights Damages in Employment
MONETARY CAPS ON HUMAN RIGHTS DAMAGES ELIMINATED

Human rights damages are general damages for injury to dignity, feelings and self-respect resulting from a breach of the Human Rights Code (the “Code”). In November 2008, significant legislative changes came into force that changed the law on human rights damages in Ontario. The legislative changes eliminated a longstanding monetary cap on the human rights damages that could be awarded in each case and opened the door for civil courts to award human rights damages in wrongful dismissal actions. This article will look at the legislative changes and their effect on awards of human rights damages in the four years since they took effect.

The Human Rights Code Amendment Act, 2006

Malcolm MacKillop,
LL.B.
Senior Partner,
Shields O’Donnell
MacKillop LLP
In 2006, the Ontario government introduced Bill 107, the Human Rights Code Amendment Act, 2006 (the “Amendment Act”). The parts of the Amendment Act relating to damages for breach of the Code came into force almost two years later on November 30, 2008 and made two key changes.

First, there is no longer any cap on the quantum of human rights damages that can be awarded. Prior to the Amendment Act, if the Human Rights Tribunal of Ontario (the “HRTO”) determined that the Code had been infringed it could award damages for losses caused by the infringement. In addition, the HRTO had the power to award compensation for mental anguish of up to $10,000.00, but only in circumstances where the infringement was found to be wilful or reckless. As a result of the Amendment Act, the HRTO is now empowered, in the case of an infringement of the Code, to order monetary compensation for “injury to dignity, feelings and self-respect.” The requirement that the infringement be wilful or reckless has been eliminated. Further, the monetary cap of $10,000.00 no longer exists.

Second, previously only the HRTO was empowered to award damages for breach of the Code. The Amendment added section 46.1(1) to the Code which empowered civil courts to order damages for breach of the Code. Specifically, an employer who violates the Code can now be ordered either to pay monetary compensation or to make nonmonetary restitution for a loss arising out of the violation including for injury to dignity, feelings and self-respect. It should be noted that the changes to the Code do not allow an employee to commence an action solely on the basis of a breach of the Code; these claims must be combined with another cause of action such as a wrongful dismissal.

At the time the Amendment Act came into force, expectations were that the quantum of human rights damages awarded by the HRTO would increase and that we would begin to see a large number of claims for human rights damages in wrongful dismissal actions. Four years later, we are in a position to examine the effects of the change.

The Effects of the Amendment Act

Many of the same factors continue to govern awards of human rights damages. The principal factors that are taken into consideration when awarding human rights damages are the number of individuals affected, the seriousness of the discrimination or harassment and lack of good faith on the part of the employer.

Alison Adam, LL.B.
Associate,
Shields O'Donnell
MacKillop LLP

The abolished cap on human rights damages did not result in the immediate or dramatic increase to the quantum of damage awards predicted by some commentators. Although the HRTO does not collect data on the amount and number of general damages awards, the majority of general damages awarded in 2011 and 2012 fall between $5,000 and $10,000. However, there have been several recent decisions in which high dollar amounts of double or triple the previous cap have been awarded. These high damages awards have generally been reserved for cases with particularly egregious facts.

In Knibbs v. Brant Artillery Gunners Club, 2011 HRTO 1032, the Applicant was absent from the workplace on medical leave. While away, the Respondent falsely accused her of stealing and demoted her to part-time status. When she became pregnant before she returned from leave, the Respondent fired her. The Respondent was ordered to pay a total of $33,000.00 in damages for injury to dignity, feelings and self-respect.

In Farris v. Staubach Ontario Inc., the Applicant was employed as a real estate agent with the Respondent. The Applicant was the subject of a “vicious sexual rumour”: male employees made sexual comments about and to the Applicant. The HRTO found that management was complicit in allowing this poisoned work environment to continue. The HRTO awarded $30,000.00 in damages for injury to dignity, feelings and self-respect.

There have also been other cases involving high damage awards, including a $25,000.00 award in Byers v. Fiddick Nursing Home, 2012 HRTO 952, in which the Applicant was refused long term disability benefits on the basis of age and a workplace injury and Pilon v. Cornall (City), 2012 HRTO 177, in which the Applicant was awarded $20,000 in general damages when her employment was terminated after she made a request for modified work to accommodate her medical condition.

While some hefty damage awards have emerged from the HRTO, civil courts in Ontario have not been so quick to award human rights damages. In Keays v. Honda Canada Inc., [2008] the Supreme Court acknowledged that the legislative amendments to the Human Rights Code allow a plaintiff to advance a breach of the Code in connection with another cause of action. More recently, in Anderson v. Tasco Distributors, [2011] O.J. No. 106, Justice Echlin permitted a claim for breach of the Code and specifically for failure to accommodate to proceed where that claim was combined with a claim for wrongful dismissal.

The above noted cases confirm the right of civil courts to award human rights damages. In addition, we regularly see wrongful dismissal cases that incorporate an allegation of breach of the Code and a claim for human rights damages. However, we are not aware of any case in which an Ontario Court has yet awarded human rights damages for injury to dignity, feelings and self-respect arising out of an infringement

of the Code. The most likely explanation is that a case warranting such damages has simply not made its way to trial in the period since the Amendment Act. Going forward, employers should expect to see claims for breach of the Code being incorporated in wrongful dismissal actions.

Malcolm MacKillop and Alison Adam practise employment law with the firm Shields O’Donnell MacKillop LLP of Toronto.

NOTE: Malcolm MacKillop will be keynote speaker on Today's Critical Issues in Employment Law at IPM's Toronto One Day Conference on May 8, 2013. Click here for more details

HR’s Role in Mergers and Acquisitions
MAKING IT WORK

Mergers and acquisitions continue to be a major activity for Canadian and international businesses with billions of dollars of share holders’ equity being transferred from one company to another every year. These activities present a series of challenges and opportunities for HR professionals who not only have a major stake in their outcome, but a number of valuable roles to play throughout the process.

Philip H. Gennis,
LL.B., CIRP
Trustee,
msi Spergel Inc
The first thing to note about mergers and acquisitions is that despite the amount of energy, time and newspaper space that they occupy, a study by KPMG found that 83 percent failed to produce any tangible benefits. Furthermore, over half actually ended up reducing the value of the re-organized enterprise. There are a variety of reasons why they fail to achieve success but most can be placed in one of two categories. They fail because of business reasons, namely that the financial assumptions were incorrect or that the acquiring company paid too much for its new partner. They also fail due to people reasons, either a failure to merge two conflicting cultures or simply poor planning or implementation on the part of management.

Philip Gennis, commercial insolvency & restructuring specialist with msi Spergel inc., states that as exciting as successful mergers and acquisitions can be, failures can be devastating, resulting in loss of credibility, destruction of value and in some cases, bringing both parties to ruin. Depending on how you measure it, between 50% and 80% of merger and acquisition deals fail to attain their objectives, before or even after the deal is done.

HR professionals may not be able to overly influence the strictly financial aspects of the decision to merge or acquire a new company. Those matters are usually the purview of the financial and accounting experts. HR must, however, understand the basic financial considerations that go into making such decisions. They certainly play a major role in determining whether a new acquisition is a good cultural fit and how to successfully integrate a new organization and workforce into their new home.

Every merger and acquisition has a number of stages that it will go through before full integration is achieved. They include the pre-deal period, the integration planning phase and implementation. To be of best service to the organization throughout these stages, HR should acquire and perfect a number of skills and abilities that include:

  • Moderate level of Merger and Acquisition literacy

  • Basics of how to evaluate another company

  • Ability to plan and lead complex projects

  • Expertise with people/ organization/culture integration

  • Knowledge of best people practices/systems

  • How to retain and motivate critical talent

    Pre-Deal

    During the pre-deal period when the partners in the mergers and acquisitions dance are sizing each other up to see if there’s a good fit, HR can assist by ensuring that all “people” issues are on the table and considered. This includes helping to ensure due diligence

    on all aspects of the people/ organization cultural fit and more importantly, to assist executives by providing accurate “people” related costs and savings that the merger or acquisition might involve. There should also be some cost benefit analysis prepared on integrating human resource policies, programs and information systems.

    Integration Planning

    Once the decision has been made, HR should take the lead in a number of key areas. These include developing strategies for employee communications in both the old and newly merged units as well as training programs for new managers and supervisors to ensure that they are familiar with all aspects of employee management and supervision. New organizational charts and authority manuals will help smooth the transition as well as focusing on filling key vacancies and ensuring that all new employees are seamlessly placed into the benefits and payroll systems. Beyond the mechanics, HR has an invaluable role to play in monitoring employee satisfaction, ensuring two-way communication and helping everyone in the organization cope with change. This part of the work is crucial to the success of the merger or acquisition. Many such endeavours have failed in the past because these elements were not managed properly by senior executives with the active support of their HR team.

    Implementation

    Now is the time to put all those great plans into place. This means the actual aligning of HR systems and processes and the inevitable tweaking until you get them right. It also means being vigilant for signs that the process is working well, or more importantly for the culture “clashes” arising that need to be dealt with immediately. HR experts can also help make positive change by championing positive things like incentive programs for seamless integration and performance bonuses for achieving synergy between different parts of the old and new organizations. HR will also have to take the lead in supporting and encouraging managers especially at the senior levels to actively engage with the “troops” and help to build a new and positive workplace culture in the new organization.

    Philip Gennis states that when the balance is achieved between tangible and intangible assets, it provides a solid foundation for strategic growth and ensures return on investment. It also allows senior executives to embrace the leadership in a realistic way. The degree to which those responsible for merger strategy prioritize getting the intangibles right can make the difference between an engaged, productive workforce and acrimonious opposition between a new value enterprise and all-out warfare. Achieving a marriage of business cultures will make the difference between a lucrative return and an expensive failure. HR professionals certainly play a major role to help the new organization achieve success!

    Members Quarterly Staff Writer

    Energy on the Front Line
    UPCOMING SERIES FOR AND ABOUT MANAGERS

    What to look forward to...

    Is there any role in the workplace that is tougher than a frontline manager? It is the role that is caught between the desires of executives focused on the strategic horizon and frontline employees charged with getting the work done. The delicate balance of trying to keep two important, yet diverse, sets of competing priorities in play can be exhausting. There are some days when managers are just simply caught in the crossfire. It feels like a lot of work – trying to lead the charge and rally the troops all at the same time. As a result, managers can sometimes feel defeated making it increasingly difficult to be resilient and to lead.

    Gail Boone
    Executive Coach
    and Owner of
    Hold Them Big
    Organizationally, this creates a risk. Recruiting into these crucial positions has become more challenging. It simply is not as inviting anymore. Service and/or profit may be compromised.

    However, there is hope in winning this battle amongst competing priorities. It rests with the changing role of the manager and your level of influence. Ultimately, it is about increasing your level of organizational impact without leaving you feeling ambushed. How does the role need to shift from trying to be all things to all people to one about learning how to create capacity in others?

    The Energy on the Front Line series is about having a HOT© conversation with managers about managers your role and the support you require as you navigate a change in how you show up as a leader in the evolving workplace. It is an Honest, Open and Transparent© examination of

    key concepts that when applied, can make a significant difference in your personal positivity and productivity as well as within your workplace. This series is dedicated to supporting managers, focusing on your needs first to ultimately have exponential impact on relationships and fulfilling the needs of others – employees, teams, workplaces and those you serve. It’s about shifting you from the place of doing to enabling. As the series unfolds, we invite your comments and questions with the intention of learning from one another and including them in the dialogue to build our collective capacity.

    The first article Inside Out Leadershift is about exploring self. Who you are is how you lead. It will compassionately challenge managers and help them think about how they need to shift so they can lead others more effectively. It will examine leader self-awareness and the shift from doing to being. It is about learning and understanding self as a leader and coach to create capacity in others.

    Carla Hurley
    Executive Coach
    and Owner of
    Inside Out
    Leadershift

    The second article, Hold Them Big is about relationships. It is about the way managers approach other people and the attitudes we hold as we enter into or continue in “relationship” with them. It acknowledges that we get more of what we give and invites us to think about how to coach to abundance. It will challenge managers to look in the mirror for a real view of what we believe about others’ contributions. It challenges our misguided practice of doing it ourselves – that belief of “if I want it done right, I need to do it myself”. Finally, it also offers strategies for different thinking to enable capacity in others.

    The third in the series focuses on the single most powerful tool in the manager’s toolbox. The Question is the Answer is about ‘manager as a coach’ and how powerful questions are the key to building capacity, resiliency and accountability in others. Some

    say powerful questions generate powerful thinking. We believe that daring to be curious regardless of the “perfect” question opens the space for collaboration, co-creation and innovation.

    The final article So What, Now What distills the critical success factors – the ‘so what’ in the shift from managing to coaching and the impact to you, your relationships with others and your organizations. This article will pull it all together and answer some of the questions you raised throughout the series. We know that change starts within. Without the self-awareness and the desire for different, we’ll get more of the same. We already know that more of the same is simply not sustainable on either the individual or organizational fronts.

    We hope that by the end of it all, there’s a different understanding, desire and the beginnings of a new way forward. We hope there’s a daring to be different. It is about building Energy on the Front Line.

    To prepare for this series, we would ask you to do the following:

    Start by asking your boss, your direct reports and a few of your peers about your management strengths and growth opportunities. A safe way to structure this conversation is to ask the following questions: What am I doing well and should keep on doing? What do I need to tweak? What do I need to stop doing? What am I not doing that I should start?

    Engaging colleagues who will provide you with honest feedback is a great way to launch your thinking about how you show up in the workplace.

    Gail Boone — Executive Coach and Owner of Hold Them Big; Professional Certified Coach (PCC) — International Coach Federation. She can be reached at gailboone@ns.sympatico.ca

    Carla Hurley — Executive Coach and Owner of Inside Out Leadershift; Professional Certified Coach (PCC) — International Coach Federation. She can be reached at carlahurley@eastlink.ca

    NOTE: Gail Boone and Carla Hurley will be presenting on The Next Frontier - Recruiting for the 21st Century Workplace at the Halifax One Day Conference on April 10, 2013. Click here for more details



    Redirecting Behaviour with Words
    CONSIDER THE CONSEQUENCES

    How often do you feel frustrated and misunderstood or feel like you are on the losing end of an argument? There will be times in our lives when we are confronted with circumstances or situations where the success of our conversations or the ability to use our words will determine our greatest results.

    Wendy Godmere
    Certified
    Communications
    Specialist
    One of the finest arts you can learn is to communicate not only effectively but to learn to use your words to create an atmosphere that breeds respect and redirects escalated behaviour. We all know how easily and quickly a conversation can escalate and many times its intensity comes from an internal struggle to gain control. Whether in the office, at home or on the streets, understanding how to redirect negative behavior with words makes it possible for you to have productive communication every day.

    One of the greatest weapons we carry is our tongue. It can fire off just one sentence and stall your career, cause a physical encounter and literally destroy a relationship. We can recover from physical blows to the body but the facts are we will likely never fully recover from the wounds inflicted by words as they become etched in our memory.

    The real question is not will situations arise because we know they will. The real question is how we will choose to handle them. The easy answer – don’t allow what people say affect you and learn to let it roll off. I know we all have the desire for the best outcome when conflict arises. The challenge is that it often happens very quickly and the ability to learn to hold your tongue before speaking comes with practice. Consider that words can only have power and influence over you if you give them that power.

    The secret is simple. If someone insults you, resists your opinion or idea, or attacks your goals, values and integrity, you must learn to resist reacting and learn how to respond. This shows them that the words have no meaning or power over you. If you fight back and resist the affront, you give their words life and credibility. If you defend yourself, you invite a counter attack. An attack can only carry the weight we give it. If an antagonist can upset you, then he/ she owns you at some level. You can use your words to gain the immediate victory by telling them off or antagonizing back, but eventually you will be owned by that encounter. You will be called on it either by your boss, your partner or even the courts. Chances are your victory will only be temporary and the wave will come around. The goal is to avoid the words, “why didn’t I just keep my mouth shut?” and live in the understanding to never allow someone else’s opinion of you become your reality.

    The minute we use words that naturally rise to our lips, we run the risk of giving the greatest speech we will live to regret. We say things that we wish we had never said and worst than that, we can never take them back. This happens most often in our lives when we allow others to set the tone of our confrontation.

    We all deal with difficult situations or what we refer to as difficult people, so I learned a long time ago that I had better learn to look at these situations as opportunities. One of the most impactful words in the English Dictionary is the word “empathy.” Empathy does not mean to sympathize with someone or even to like or love someone, nor does it mean that you have to agree with what they are saying. Empathy translates to “understand or see through the eyes of another person”. The minute you stop seeing through your employer’s eyes, you can start looking for a new position. If you stop seeing through your partner’s eyes, you can head for divorce court. If you stop seeing through your friends’ eyes, you will have to look for a new crowd to run with. Empathy is the quality of standing in another person’s shoes and understanding where they are coming from.

    The bottom line in communication: Empathy absorbs tension. It works every time.

    We agree that we all want to be understood. Sometimes, we have to do things in a way that doesn't feel natural at first. With practice and understanding the difference between reacting and responding, it makes the journey of learning to use our words to redirect behaviour worth it. If you realize that when conflict arises, you can learn to curb your tongue and use techniques that will gain greater ground and in the long run, reduce stress and increase productivity, you will see growth and retention in your organization. I am a firm believer that the effort you put forth in yourself and the relationships you deal with on a daily basis is worth the investment.

    Wendy Godmere is a Certified Communications Specialist and can be reached at 1-866-534-6094 or via email at wendy.godmere@sympatico.ca.

    NOTE: Wendy Godmere will be presenting on Develop Productive Teams at the Toronto One Day Conference on May 8, 2013. Click here for more details

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