Speaker's Corner: Human Rights Tribunal needs to revisit discrimination remedies

On March 17, 2016, the Human Rights Tribunal of Ontario released its decision in Lewis v. Sugar Daddys Nightclub, finding that Caesar Lewis was subjected to vicious physical and verbal abuse based on his gender identity and expression.

Lewis and three friends were enjoying a night out when Lewis was dragged from the stall he was using in the nightclub’s washroom. The Tribunal found on the facts that the young man and his friend were told: “You freaks need to get your fucking faggot asses out of this club.”

After being forcibly ejected from the club, “three security guards started to physically assault the applicant by pushing him to the ground, kicked him approximately 10 times in the back and head, and punched him approximately 10 times.”

The beating resulted in a concussion and other injuries.

The Tribunal awarded only $15,000 in financial compensation.

In contrast, in Silvera v Olympia Jewellery Corporation, 2015 ONSC 3760, Ontario’s Superior Court awarded $30,000 specifically in relation to human rights violations, out of a total award of more than $200,000, in a sexual harassment and employment case.

The low Tribunal award in Sugar Daddys may surprise readers given the persistent chatter in many circles about perceived increases in human rights awards. The recent Tribunal decision in O.P.T. v. Presteve Foods Ltd., 2015 HRTO 675, in which a migrant worker was awarded $150,000 after persistent sexual aggressions, contributed to this myth that human rights awards are increasing. The exceptional award in Presteve is not reflective of any trend, despite the record number of alarmist articles written by respondent counsel about “skyrocketing” damage awards. The cap on damage awards was lifted in 2008 as part of changes to the Human Rights Code, yet a recent analysis of Tribunal decisions over a 15-year period shows continued restraint and flat-lined awards.

In “Undercompensating for Discrimination: An Empirical Study of General Damages Awards Issued by the Human Rights Tribunal of Ontario, 2000-2015,” Audra Ranalli, a student of Osgoode’s Anti-Discrimination Intensive Program based at the Human Rights Legal Support Centre, analyzed all general damages awards issued by the Tribunal from Jan. 1, 2000 to Dec. 31, 2015. Ranalli and co-author Prof. Bruce Ryder found that the average amount of general damages awards has in fact declined over the past 15 years when inflation is taken into account. 

Ranalli parsed the data into four time periods to consider how changes to the Code and Ontario’s human rights system may have had an impact on awards. The most recent period analyzed, 2013-2015, showed that the average award was $12,158.

An average compensation of $12,000 for proven human rights violations? It’s 2016. Discriminatory conduct (often coupled with wilful ignorance of the law, refusal to investigate, and prolongation of harm) should attract significant financial compensation for the person whose human rights have been violated.
For the businesses involved, the risk of a substantial award that amounts to more than a “nuisance fee” would create the incentive to establish aggressive anti-discrimination strategies to prevent human rights violations in the first place. These are the efforts that are needed to create real change in the lives of people harmed by discrimination. It’s certainly not all about the money. 

The Human Rights Legal Support Centre represented claimants at 81 Human Rights Tribunal hearings and 440 mediations in 2014-2015. Based on our experience, most human rights claimants are equally motivated by a desire to have their human rights violations clearly and publicly acknowledged and to try to prevent others from experiencing the same discrimination and harassment — whether in policing, schools, housing, or at work. 

The Tribunal has very broad powers to combat discrimination. Its remedial powers are aimed at fulfilling the public policy goal set out in the preamble to the Human Rights Code to “provide for equal rights and opportunities without discrimination that is contrary to law.” 

The Tribunal is empowered, under s. 45(2)3 of the Code, to issue orders directing parties “to do anything that, in the opinion of the Tribunal,” they ought to do “to promote compliance” with the Code, including “with respect to future practices.”

Moreover, the Tribunal may make orders that go beyond the specific remedies requested by the applicant. In Sugar Daddys, the applicant requested $15,000, but given the egregious facts in that case, a higher award was justified. In addition, the Tribunal might have ordered the respondent to take specific steps to ensure its existing gendered washrooms are accessible to and safe for non-binary/genderqueer/trans people, and that the club install a single-user gender-neutral washroom as an alternative for anyone who chooses it.  

The Human Rights Tribunal has formidable powers to send a clear message to both human rights claimants and the institutions that propagate discriminatory harm. Let’s make sure that all Ontarians benefit from the exercise of those powers.

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Jennifer Ramsay works at the Human Rights Legal Support Centre. The Centre provides free legal assistance to people in communities across Ontario who have experienced discrimination contrary to Ontario’s Human Rights Code.