Human Rights Damages in Employment: When Discrimination Leads to Six Figures

The Quiet Escalation of Human Rights Damages

For years, employers treated human rights complaints as a nuisance — an inconvenience that might cost them $10,000 or $20,000 in "injury to dignity" damages at the Human Rights Tribunal of Ontario (HRTO). Those days are over. A clear trend has emerged in HRTO jurisprudence: damages for workplace discrimination are increasing, and they're increasing significantly.

The combination of broader judicial recognition of the harm caused by discrimination, the Supreme Court of Canada's recalibration of employment damages in Honda Canada Inc. v. Keays, 2008 SCC 39, and the HRTO's expansive remedial jurisdiction has created a landscape where six-figure human rights awards in employment cases are no longer exceptional — they're becoming a pattern.

The Architecture of Human Rights Damages in Ontario

The Human Rights Code, R.S.O. 1990, c. H.19, provides the HRTO with broad remedial authority under section 45.2. When the Tribunal finds that a right under the Code has been infringed, it can order:

- **Monetary compensation** for losses arising out of the infringement, including compensation for injury to dignity, feelings, and self-respect.

- **Restitution** of the complainant to the position they would have been in absent the discrimination (including reinstatement).

- **Compliance orders** requiring the respondent to take specified actions.

The key category for large awards is injury to dignity, feelings, and self-respect. Unlike compensatory damages in tort, these damages are not limited to quantifiable economic losses. They are inherently subjective, calibrated to the severity and duration of the discrimination, its impact on the complainant, and the respondent's conduct.

Honda v. Keays: The Supreme Court Reshapes the Landscape

The Supreme Court's 2008 decision in Honda Canada Inc. v. Keays fundamentally altered how damages are assessed in employment cases involving bad faith and discrimination-adjacent conduct. While Keays is primarily a wrongful dismissal case, its implications for human rights damages are profound.

Before Keays, the so-called "Wallace bump" — an extension of the reasonable notice period to compensate for bad faith in the manner of dismissal — had become routine. The Supreme Court eliminated the notice-period bump and replaced it with a requirement that damages for bad faith in dismissal be assessed as standalone compensatory damages under the Hadley v. Baxendale foreseeability framework.

Justice Bastarache, writing for the 7-2 majority, held that:

- Damages for conduct in the manner of dismissal must be "available only if they result from the circumstances described in *Wallace*, namely where the employer engages in conduct during the course of dismissal that is unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive."

- Such damages should be fixed as standalone monetary awards, not by artificially extending the notice period.

- The employee must prove that the manner of dismissal caused them actual harm — typically psychological distress or other foreseeable consequences.

Critically, Keays also held that discrimination claims under the Human Rights Code cannot be pursued as independent common law torts — employees must use the Tribunal process. But this has had the paradoxical effect of driving more claims to the HRTO, where the damages framework is arguably more generous for complainants.

The Escalation: Key HRTO Awards

The trajectory of HRTO injury to dignity awards tells a clear story. Consider the following decisions:

In Arunachalam v. Best Buy Canada Ltd., 2010 HRTO 1880, the Tribunal awarded $35,000 in general damages for discrimination related to a disability accommodation failure. At the time, this was considered a substantial award. A decade later, similar cases routinely produce higher figures.

In Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 HRTO 505, the HRTO awarded $30,000 in compensation for injury to dignity in a sexual harassment case. The Tribunal emphasized the vulnerability of the complainant, the severity of the conduct, and the employer's failure to take corrective action.

More recently, in AB v. Joe Singer Shoes Limited, 2018 HRTO 107, the Tribunal awarded $200,000 in damages — among the largest injury to dignity awards in Ontario HRTO history. The case involved severe and prolonged sexual harassment, and the Tribunal found the respondent's conduct "egregious and reprehensible." This decision signalled that the HRTO would not hesitate to make six-figure awards where the circumstances warranted.

The decision in Peel Law Association v. Pieters, 2013 ONCA 396, an Ontario Court of Appeal case, further confirmed that racial discrimination in professional settings warrants meaningful compensation, and that the assessment of injury to dignity damages must account for the broader social context of the discrimination.

What Drives High Awards

Several factors consistently correlate with larger HRTO damages awards:

1. **Duration of the discrimination:** Prolonged patterns of discrimination attract higher awards than isolated incidents.

2. **Severity of the conduct:** Physical harassment, sexual violence, and sustained campaigns of humiliation push awards upward.

3. **Vulnerability of the complainant:** Power imbalances — such as between a supervisor and subordinate, or involving precarious workers — amplify damages.

4. **Employer response (or lack thereof):** When employers fail to investigate complaints, dismiss them, or retaliate against the complainant, damages increase significantly.

5. **Impact on the complainant:** Medical evidence of psychological harm — depression, PTSD, anxiety — supports higher awards.

6. **Intersection of grounds:** Discrimination that engages multiple prohibited grounds (e.g., race and gender, disability and age) tends to produce larger awards, reflecting the compounding harm of intersectional discrimination.

The Post-Keays Bad Faith Damages in Court

Outside the HRTO, employees pursuing wrongful dismissal claims in the courts can seek bad faith damages under the Keays framework. Post-Keays jurisprudence has identified several categories of employer conduct that attract these damages:

- Making false accusations against the employee.

- Misrepresenting the reasons for termination.

- Damaging the employee's prospects of finding other employment.

- Firing the employee to deprive them of a benefit (such as a pension or bonus).

- Conducting the termination in a humiliating manner.

While Keays raised the evidentiary bar — requiring proof of actual harm rather than simply bad conduct — subsequent decisions have shown that courts are willing to make substantial awards. In Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, the Ontario Court of Appeal upheld significant damages where the employer's manager engaged in a sustained campaign of abusive conduct, and the court found this constituted both bad faith in the employment relationship and grounds for aggravated damages.

The Strategic Implications for Employers

The increasing damages trajectory creates clear imperatives:

- **Investigate every complaint.** The HRTO penalizes employers who ignore or minimize human rights complaints. A robust investigation process is not just good practice — it's a litigation shield.

- **Train managers.** Many high-damages cases arise from the conduct of individual managers who discriminate or harass with impunity. Employer liability is vicarious — the company pays for its managers' failures.

- **Document accommodation efforts.** Disability discrimination claims consistently produce high awards, particularly where the employer fails to demonstrate meaningful accommodation efforts up to the point of undue hardship.

- **Don't retaliate.** Reprisal claims under section 8 of the *Code* are standalone violations. Retaliating against an employee who files a human rights complaint can result in separate and additional damages.

The Bottom Line

Human rights damages in Ontario employment cases are no longer nominal. The combination of evolving HRTO jurisprudence, the Keays framework for bad faith in the courts, and increasing societal recognition of the real harm caused by discrimination has produced a damages environment that demands employer attention. Six-figure awards are real, they're defensible on appeal, and they're becoming more common.

For employees who have experienced workplace discrimination, the message is equally clear: your claim has value. The legal system is increasingly willing to put a meaningful price tag on dignity.