Prior to 2008, Ontario did not permit courts to award damages for breach of the Code. In 2008, s. 46.1 of the Code was enacted to provide a civil remedy for human rights violations. This created a new substantive jurisdiction for Ontario courts to award monetary compensation and/or restitution for a breach of the Code.
It is important to note that s. 46.1 does not permit a person to commence an action based solely on a breach of the Code. In order to utilize s. 46.1, a plaintiff must plead a recognized civil cause of action as well as a breach of the Code. This is most likely to arise in circumstances where there is a human rights element to a wrongful or constructive dismissal claim. For example, an employee might utilize s. 46.1 if she alleges that she has been terminated from her job and her disability was a factor in her termination.
Those were precisely the facts in Wilson v. Solis Mexican Foods Inc, 2013 ONSC 5799. After 16 months of employment as a business analyst, Ms. Wilson was dismissed without cause. Ms. Wilson alleged that she was terminated, at least in part, because of an ongoing back ailment. She therefore claimed that her rights under Part I of the Code were infringed and that she should be awarded damages pursuant to s. 46.1.
The Court noted that any decision to terminate an employee which is made, in whole or in part, on the basis of a disability is discriminatory and contrary to the Code. Citing Chen v. Ingenierie Electro-Optique Exfo Inc., the decision incorporates the well-established principle in human rights law that “the protected ground need only be one factor in the decision made that adversely affected the [employee]; it does not have to be the only or primary reason.”
In this case, Justice Grace concluded “without hesitation” that the decision to terminate the plaintiff started with her complaints of back pain. Thus, the Court found that Ms. Wilson was terminated in whole or significant part because of her disability, and her right to equal treatment was violated in breach of Part I, s. 5(1) of the Code.
When evaluating the plaintiff’s discrimination claim, the Court considered the following facts:
- the employer’s regard for the plaintiff changed around the time that she raised her back issues;
- no accommodation was offered or seemingly even considered (the employer insisted that there be a “complete recovery” before the plaintiff’s return);
- the employer’s purported reason for termination, an “impending divestiture”, was not proven in any document proffered at trial and did not feature in a single communication with the plaintiff before her termination.
Having found a breach of the Code, the court exercised its jurisdiction under s. 46.1 and granted a global award of $20,000.