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Human Rights (Ontario) Law
(30 September 2009)

Chapter 17 - Remedies and Offences

  1. Overview
    (a) General
    (b) Comment on Final Orders and Reasons
  2. Private Application Remedies
    (a) Overview
    (b) Monetary Compensation ('Damages')
    (c) Non-Monetary Restitution
    (d) Prospective (Future-Looking) Orders
  3. Commission Application Remedies
  4. Enforcement of Code Orders
  5. Government Contracts and the Code
  6. The Civil Courts and the Code
    (a) Overview
    (b) Abuse of Process and Res Judicata
    . Overview
    . Application Prohibition
    . Procedural Defence
    (c) Limited Jurisdiction
  7. The Code and Other Administrative Tribunals
  8. The Code and the Charter
    (a) Overview
    (b) No Remedial Expansion by Using Charter
  9. Offences
    (a) The Code Offences
    (b) Due Diligence Defence
    (c) Limitation Period
    (d) Procedures
    (e) Penalty
--------------------------------------


1. Overview

(a) General

This chapter discusses the Code's final remedial provisions, including the compensatory and prospective (future-looking) remedies available under private Code applications, and the more policy-oriented remedies available under Commission applications.

Distinguish these 'final' remedies from interlocutory orders which relate to the procedural conduct of an application. These orders, mostly located in Rule 1.7 are orders available 'on motion' and are discussed in Ch.11: "Motions". As well other interlocutory proceedings, particularly those resulting in summary dismissal, are considered in Ch.12: "Summary Proceedings".

Other significant topics discussed here include the interaction of the civil courts and Code remedies, and the prosecution offences.

(b) Comment on Final Orders and Reasons

As is the case with any administrative tribunal decision or order, how it is done matters.

Any 'final' decision or order (finally disposing of rights short of a reconsideration application: see Ch.19: "Reconsiderations") must be coherent so that parties understand what is being ordered, must be made within the jurisdiction of the Tribunal and the particular procedure being utilized at the time, and - ideally - it should be issued with Reasons so that it can be both transparent and subject to some sort of judicial scrutiny.

The Code requires that, regardless of the procedural nature of the final decision or order [Code s.43(2)2]:
s.43(2)
The rules shall ensure that the following requirements
are met with respect to any proceeding before the Tribunal:

2. An application may not be finally disposed of without written
reasons.
It is important to note that 'final' decisions or orders are not always those issued after the conclusion of full application hearing process (in fact those are the minority). As is noted in Ch.12 ["Summary Proceedings"] there are numerous oppourtunities for the Tribunal to ('finally') kill off a case well before hearing. All such orders are subject to the above-quoted s.43(2)2 duty to provide reasons.

To date however, and in clear violation of Code s.43(2)1, there are no Rules that specifically require Reasons to be issued when the Tribunal makes a final order [the closest thing to an exception to this is Rule 13.2, which requires Reasons be provided with a preliminary 'Notice of Intention to Dismiss an Application' (for lack of jurisdiction)].

In Ch.20 ["Judicial Review"] and elsewhere in this Isthatlegal.ca Human Rights (Ontario) Legal Guide, I have discussed the resistance of the entire Code system (both legislative and Tribunal) to subjecting Tribunal decisions to judicial scrutiny (particularly the absence of a statutory appeal mechanism). In light of that background, and as Reasons for Decision are the primary basis on which a court may review a lower tribunal's decision or order, the failure of the Tribunal to make Rules requiring Reasons be issued with final decisions is disconcerting. We can only hope that actual Code practice, if it is not going to comply with the letter of the law, at least complies with the spirit by issuing Reasons for any final order as Code s.43(2)2 plainly requires.


2. Private Application Remedies

(a) Overview

The private s.34 Code application [see generally Ch.8] will hopefully become the 'workhorse' provision of the Code, signalling an end to the ineffectual hegemony of past Commissions. Private application remedies, triggered by an infringement of a Code right (ie. discrimination) include and exceed most of those available in general legal matters in the civil courts. They are discussed in turn below.

Note that the Tribunal can normally (except where the rules provide otherwise) grant any of the statutorily-available remedies on its own initiative, even of the applicant has not requested them [Rule 1.5]. Further, the Tribunal can consider public interest (policy-oriented) remedies either on its own or at the request of a party, as long as it first gives the parties an oppourtunity to make submissions on the possibility [Rules 1.7(u)].

Note as well that some of these remedies (and perhaps more) are also available from a civil court if it is properly deciding Code issues: see s.6(c): "The Civil Courts and the Code: Limited Jurisdiction", below.

(b) Monetary Compensation ('Damages')

On infringement of a Code right, the Tribunal on a s.34 application may make [Code s.45.2(1)1]:
An order directing the party who infringed the right to pay
monetary compensation to the party whose right was infringed for
loss arising out of the infringement, including compensation for
injury to dignity, feelings and self-respect.
Monetary compensation corresponds to what lawyers generally call 'damages'. As it is likely that this Code remedy will look at least in part to the highly-evolved body of law that governs civil court damage remedies, I link here to that discussion in the Isthatlegal.ca Small Claims Law (Ontario) Legal Guide:

Ch.14, s.5: Trial: Orders and Judgments

Roughly though damages may be broken down into the following:
  • Special Damages

    This is compensation for out-of-pocket expenses that have
    actually been incurred (whether paid or not) and which are
    usually easily calculated (the term 'liquidated' is used to
    describe easily-calculable losses).

    For example, if a person was denied access to facilities on a
    prohibited ground in location A and then incurred extra travel,
    food and accomodation expenses in obtaining them at the more
    inconvenient location B, then those expenses (likely
    substantiated by receipts) would be 'special damages'.

  • Loss of Profit/Income

    Loss of profit or income is a pretty straightforward concept, but
    can be difficult to calculate in some cases. Noteworthy is that
    it can compensate for both past loss (loss in the time between
    the discrimination and the judgment) and future loss (loss from
    the date of judgment).

    For example, take the situation of a person denied employment on
    a prohibited ground. One can relatively easily point to the wage
    that the job paid, and say that is the measure of damages for
    loss of income.

    However, no one knows how long the job would have lasted without
    the discrimination, so the problem arises: for how long a period
    should that wage be awarded as a loss? Further, if the person
    gets an equivalent value job next month, should those earnings be
    applied in mitigation (reduction) to reduce the loss of income
    claim?

    These and other damage determination issues, which are frequently
    bashed about in the civil courts in tort and contract lawsuits,
    become relevant to loss of profit/income claims under the Code.
    Note however that, like 'special damages' (above), these losses
    have at least some foundation in employment or busienss activity
    which assists in calculating their amount.

  • General Damages ('Pain and Suffering')

    'General damages' are ill-defined in law, and the term is a
    misleading one, but they may roughly be equated with damages for
    intangibles things like 'pain and suffering' or 'insult'. Note
    that the above Code provision expressly mentions the very similar
    "injury to dignity, feelings and self-respect."

    General damages differ from 'special damages' and 'loss of
    profit/income' (above) in that they have effectively no basis
    upon which reasoned calculation can be made. Rather what happens
    in the civil courts is that judges look to past instances of
    similar harm or injury, and try to award an amount comparable to
    those awards - factoring up or down for greater or lesser
    severity if necessary, and up for inflation since the date of the
    comparator award.

    For example, if a judge in 1980 awarded $150,000 to a defendant
    with third degree burns over a third of her body, a judge today
    might comparably award $200,000 today in 2009 (factoring up for
    inflation) to someone with 10% third degree and 50% second degree
    burns. Do not look for any science or mathematics in this - there
    is none, the amounts are being generated by a sort of
    legal-societal discretion that we allocate to judges.

  • Restitution

    'Restitution' in the civil courts refers to a specific kind of
    loss that is not grounded in either tort or contract. It requires
    the presence of three factors: loss by the plaintiff, related
    enrichment by the defendant, and 'no juridical reason for the
    loss/enrichment'.

    An example would be where an invoice is inadvertently overpaid.
    The excess amount is a loss to the plaintiff, an enrichment by
    the defendant, and there is no legitimate legal reason for it to
    have occured. In such a case the courts could order 'restitution'
    of the excess-paid monies.

    Note that while s.45.2(1)2 of the Code uses the term
    "restitution", it's meaning there is essentially the same as
    'compensation'.
(c) Non-Monetary Restitution

Beyond compensation, on infringement of a Code right, the Tribunal on a s.34 application may make [Code s.45.2(1)2]:
An order directing the party who infringed the right to make
restitution to the party whose right was infringed, other than
through monetary compensation, for loss arising out of the
infringement, including restitution for injury to dignity, feelings
and self-respect.
This is a novel remedy, and one not normally found in the civil courts. It amounts to injunctive (ie. orders compelling or prohibiting behaviour) relief for Code infringements, such things as apologies (public or private), and other imaginative techniques to 'make the victim whole'. Note that while ordering non-monetary restitution may have an incidential preventative (future-looking) effect, its focus is still on 'restitution' (in its Code meaning) for past infringement.

(d) Prospective (Future-Looking) Orders

On infringement of a Code right, the Tribunal may on a s.34 application make [Code s.45.2(1)3]:
An order directing any party to the application to do anything
that, in the opinion of the Tribunal, the party ought to do to
promote compliance with this Act.
These orders, which can (apparently) be both monetary and injunctive (ie. compelling or prohibiting behaviour) in nature, focus on prevention (ie. "promote") and are necessarily prospective or future-looking. These orders do not have to be based in the particular experience of the successful applicant, and can have an openly-embraced policy aspect.

Examples of such remedies here might include mandatory attendence for company employees at discrimination-awareness education sessions, or respondent funding of affirmative action initiatives. In extreme cases the Tribunal could retain ongoing jurisdiction over a case for years until measurable and targetted anti-discrimination goals are met (eg. employment gender-balance equity).

The prospective aspect of these orders is made plain by the clarification that such orders [Code s.45.2(2)]:
  • may direct a person to do anything with respect to future
    practices; and

  • may be made even if no order under that paragraph was requested.

3. Commission Application Remedies

Consistent with the public interest mandate of the Commission [Code s.35(1)], it has been given broad remedial authority on any s.35 Commission-initiated application [which are discussed in Ch.9].

On infringement of a Code right, the Tribunal on a s.35 application "may make an order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act" [Code s.45.3(1)]. To clarify, the Code adds that such an order: "may direct a person to do anything with respect to future practices", reinforcing the forward-looking policy orientation of these orders.

Note that the Tribunal can normally (except where the Rules provide otherwise) grant any of these statutorily-available remedies on its own initiative, even of the Commission has not requested them [Rule 1.5]. Further, the Tribunal can consider public interest (policy-oriented) remedies either on its own or at the request of a party, as long as it first gives the parties an oppourtunity to make submissions on the possibility [Rules 1.7(u)].


4. Enforcement of Code Orders

Enthusiasm over the broad remedial range of Code orders (ss.2 and 3 above) should be tempered by the fact that any order, in order to be enforceable, must be amenable to the legal instruments that are available to enforce orders and judgments.

Administrative orders and judgments are enforced by being filed in the civil court system and by using the enforcement provisions of that system, which is overwhelmingly oriented towards monetary recovery. The only enforcement technique useful for any injunctive (compelling or prohibiting behaviour) type order is 'contempt of court', which is an infrequently-used, slow, expensive and cumbersome process.

Such enforcement is discussed further at this Isthatlegal.ca Administrative Law (Ontario) Legal Guide link:

Admininstrative Law (Ontario)(SPPA): Ch.8: Enforcement


5. Government Contracts and the Code

In an effort to add its own institutional weight to efforts to reduce discrimination, the Code also provides that Ontario government (Crown and agency) contracts (and related subcontracts) shall be deemed, as a matter of law, to include a condition that "no right under section 5 will be infringed in the course of performing the contract" [Code s.26(1)].

Further, with respect to non-contractual benefits (grants, gifts and
other benefits):
26(2)
It shall be deemed to be a condition of every grant, contribution,
loan or guarantee made by or on behalf of the Crown or any agency
thereof that no right under section 5 will be infringed in the
course of carrying out the purposes for which the grant,
contribution, loan or guarantee was made.
Superficially these inclusions are unremarkable in that all such activities are governed by the Code anyway, as are all Ontario residents and corporations. However the use of the term "condition" here (stemming from its use in contract law) is essential. A lesser term such as 'term' or 'provision' would not necessarily have the impact of a breach of 'condition', which justifies the government in unilaterally terminating the contract or other relations
hip.

Thus the real impact of these 'no infringement conditions' is that, upon a Tribunal finding of a Code infringement, it allows the government to cancel such contracts or benefits unilaterally - and to refuse to enter into similar with the same respondents in future - adding to the consequences otherwise ordered:
s.26(3)
Where an infringement of a right under section 5 is found by the
Tribunal upon a complaint and constitutes a breach of a condition
under this section, the breach of condition is sufficient grounds
for cancellation of the contract, grant, contribution, loan or
guarantee and refusal to enter into any further contract with or
make any further grant, contribution, loan or guarantee to the same
person.

6. The Civil Courts and the Code

(a) Overview

The Code and the civil court system interact in two primary ways, which can be explained with the concepts of 'abuse of process' and of 'exclusive jurisdiction'.

(b) Abuse of Process and Res Judicata

. Overview

Res judicata is a legal doctrine that a cause of action, once decided between the same parties, should not be re-litigated. This just makes sense from both a common sense 'fairness' perspective.

'Abuse of process' is the legalese used by respondents/defendants when faced with two or more current (but separate) legal proceedings which advance (in whole or part) the same cause of action (thus entering into a potential res judicata situation). Allegations of 'abuse of process' are typically supported by a further comment about how the dual processes are wasteful of public administrative/judicial resources.

'Abuse of process' is closely related to the res judicata doctrine in that the conducting of two simultaneous and separate legal proceedings grounded in the same cause of action has obvious potential to eventually invoke the res judicata doctrine.

The argument of course is that only one proceeding based on the single cause of action should be allowed to proceed. When one of the competing (or prior) legal proceedings is a civil court proceeding, then it can interact with a Code applications in one of two related ways, application prohibition or procedural defence (next discussed).

. Application Prohibition

The Code has formalized the above doctrines (abuse of process and res judicata) as follows:
s.34(11)
A person who believes that one of his or her rights under Part I
has been infringed may not make an application under subsection (1)
with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the
person is seeking an order under section 46.1 with respect to
the alleged infringement and the proceeding has not been
finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right
has been infringed or the matter has been settled.
. Procedural Defence

Just because s.34(11) (above) prohibits dual Code and civil court proceedings grounded in the same cause of action does not mean that they can't happen. This right still has to be asserted procedurally as a defence, and how this is done is explained in Ch.8, s.3(e): "Private Code Applications: Responses: Where Related Court Proceedings, Settlement or Prior Code Complaint".

(c) Limited Jurisdiction

The second way that the Code system and the civil courts can interact is in the awkward (and developing) doctrine that Code-based causes of action should be restricted to Code procedures, and barred from the civil courts ("exclusive jurisdiction"). This doctrine (originally emanating from the 1978 Supreme Court of Canada case of Bhadauria v Seneca College) is now partially formalized (and liberalized) in the Code:
s.46.1(2)
Subsection (1) does not permit a person to commence an action based
solely on an infringement of a right under Part I.
Now however, where a Code issue arises collaterally (ie. not as the primary cause of action) in relation to other legal causes of action legitimately before a civil court, then the court may rule on the Code issue as well and provide a remedy as follows:
s.46.1(1)
If, in a civil proceeding in a court, the court finds that a party
to the proceeding has infringed a right under Part I of another
party to the proceeding, the court may make either of the following
orders, or both:

1. An order directing the party who infringed the right to pay
monetary compensation to the party whose right was infringed for
loss arising out of the infringement, including compensation for
injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make
restitution to the party whose right was infringed, other than
through monetary compensation, for loss arising out of the
infringement, including restitution for injury to dignity,
feelings and self-respect.
These provisions allowing civil courts to consider Code issues when they are collateral to the main issue is actually a liberalization of the law in this area, brought about by the Supreme Court of Canada in the 2006 case of Tranchemontagne v Director (ODSP).

Unlike the situation with the Charter when it is grafted onto conventional civil litigation (where the full plenary range of court remedies is available: particularly declarations of the invalidity of laws), the bringing in of the Code 'in aid' does not invite use of the court's plenary remedial range. This is because s.46.1(1) plainly intends a specific and lesser remedial range.

These issues, along with related Code dismissal procedures for lack of jurisdiction, are discussed in more depth in Ch.12, s.4: "Summary Proceedings: Dismissal for Lack of Tribunal Jurisdiction".


7. The Code and Other Administrative Tribunals

In the discussion cited above [Ch.12, s.4: "Summary Proceedings: Dismissal for Lack of Tribunal Jurisdiction"], I discuss the Supreme Court of Canada case, Tranchemontagne v Director, ODSP (2008). While the specific tribunal involved in the Tranchemontagne case was the Ontario Social Benefits Tribunal (appeals on social assistance matters), the logic and reasoning of that case is broad enough to support the proposition that any administrative tribunal with a jurisdiction to apply general substantive (rights) law can also apply Code law incidental to its main mandate. The Tribunal has such general law jurisdiction:
Code s.39
The Tribunal has the jurisdiction to exercise the powers conferred
on it by or under this Act and to determine all questions of fact
or law that arise in any application before it.
Anyone considering advancing Code law within a matter otherwise legitimately before any Ontario administrative tribunal should both read the 2008 SCC Tranchemontagne case and review the specific tribunal's own position on Code jurisdiction, which should be available online at the tribunal's website.


8. The Code and the Charter

(a) Overview

The subject of the interaction of the substantive and procedural law of the Code with that of the Charter is extensive and is not considered in this Isthatlegal.ca Human Rights Law (Ontario) Legal Guide in any depth.

That said, at Ch.13, s.2: "Pre-Hearing Proceedings: Notice of Constitutional Question", explains the procedural notice that must be served and filed whenever a party wishes to raise Charter issues in a Code proceeding.

(b) No Remedial Expansion by Using Charter

Further, and just from a remedial perspective, it is essential to remember that bringing the Charter into a Code application does NOT expand the remedial authority of the Tribunal. The Tribunal - unlike the superior courts - has no authority to declare any law invalid before the Charter is invoked, and it has none afterwards. While Charter law can, in the right case, aid in the determination of whether a rights infringement has or has not occured, the remedy offered will only be one authorized by the Code and covered in this chapter.

At the highest, the Charter can be relied on by the Tribunal for case-by-case exceptions of Charter-violating laws, on the principle that a Charter-violating law cannot be applied either to support or undermine a finding of rights-infringement. While this might appear to be a remedial expansion, it in fact only impacts on WHETHER an infringement has occured, not the remedy granted.


9. Offences

(a) The Code Offences

Often overlooked in terms of Code enforcement is the possibility of prosecution under the Code's regulatory offences. This is particularly pertinent given the prolonged and abysmal past enforcement record of the Commission system.

The Code offence provisions are as follows [Code s.46.2(1)]:
  • Any Rights Infringement

    This is by far the most significant prosecution provision, and it
    covers any of the forms of substantive (rights) infringement
    considered in Chapters 2 to 5. Note however that in both Ch.6
    "Exceptions", and throughout Chptrs. 2 to 5, numerous instances
    where discrimination is 'excepted' (ie. tolerated and not
    illegal) are set out. In any event, the collective rights
    infringement prohibition reads:

    s.9
    No person shall infringe or do, directly or indirectly,
    anything that infringes a right under this Part.

  • Obstruction and Interference

    In Ch.15 ["Evidence"], I discuss several instances where
    obstruction or interference with a Tribunal or Commission
    evidence 'inquiry' is prohibited. These provisions, listed here,
    can also ground a prosecution if violated:

    s.31(14): No person shall obstruct or interfere with a person
    conducting an inquiry under this section.

    [this refers to obstruction of a Commission evidence
    inquiry]

    s.31.1(8): No person shall obstruct or hinder a person in the
    execution of a warrant issued under this section.

    [this refers to obstruction in the execution of a
    search warrant issued pursuant to a Commission
    evidence inquiry]

    s.44(13): No person shall obstruct or interfere with a person
    conducting an inquiry under this section.

    [this refers to obstruction of a Tribunal evidence
    inquiry]
(b) Due Diligence Defence

Offences such as those noted above exist in relation to many, if not most, administrative regulatory regimes in Ontario. They are generally classified according to the degree of culpability which is required of them for conviction. There are two main culpability categories: full intent, and strict liability (also 'negligence').

'Full intent' is the same standard generally applied to criminal offences (which Code offences are NOT), but it will be required for conviction under a regulatory offence provision if that provision requires that the offence be committed 'knowingly' or some similar language requiring a positive, active mental state usually called 'intention'.

'Strict liability' is the typical regulatory offence culpability standard and it is analogous to the civil liability concept of negligence. It will normally be required when the offence provision is silent with respect to any culpablity or mental state requirement. Conviction for a strict liability offence follows on proof of the 'actus reus' (prohibited acts or omissions) alone, except that the defendant may escape conviction if they satisfy the court (on a balance of probabilities) that they undertook rea sonable and prudent efforts to avoid committing the actus reus (called a 'due diligence' defence).

Note that none of the Code offence provisions (quoted above) require a positive mental state such as 'knowingly', and as such they are all 'strict liability' offences, subject to a due diligence defence. It is beyond the scope of this Isthatlegal.ca Human Rights (Ontario) Legal Guide to explore these issues any further.

(c) Limitation Period

The limitation period for laying a charge for the offences set out in s.2-4 above is six months after the date of the alleged offence [Provincial Offences Act, s.76(1)].

(d) Procedures

Procedures for the commencement and conduct of Code prosecutions are conducted under the Provincial Offences Act (POA), and are beyond the scope of this Isthatlegal.ca Human Rights (Ontario) Legal Guide.

The only significant Code-modification to those procedures, which normally allow for private prosecutions, is that "(n)o prosecution for an offence under this Act shall be instituted except with the consent in writing of the Attorney General" [Code s.46.2(2)]. This provision allows for private prosecutions, but only after AG permission has been given. Be aware that the AG always has the legal right to intercede, take over and perhaps even stay (suspend) any private prosecution, but will not normally do so if it is being competently conducted.

(e) Penalty

The maximum fine for conviction under these offence provisions is a fine of $25,000 [Code s.46.2(1)]. There is no imprisonment provision and, uncommonly, no graduated fine system for persons versus corporations.

These maximum fine are available if the matter is prosecuted using Part III POA procedures (commencement by information). When Part I (ticket) procedures are used the fine will be less.

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