Whether a legal dispute works its way through the courts or through a tribunal, the individual claiming damages can seek both monetary and non-monetary damages for their legal matter. What type of remedial options are available to them will depend on their legal issue, their facts and the losses they incurred, and the jurisdiction their matter falls under. Damages are also affected by the employee’s mitigation efforts.
This article outlines the type of monetary damages are available in common employment and human rights disputes.
Employment-Related Damages at Civil Court
Wrongful Dismissal and Constructive Dismissal Damages
When an employee has been wrongfully dismissed or constructively dismissed, they have the right to sue for damages—what these damages will be depends on the contract of the employee and whether the contract is enforceable.
The employee will either be entitled to damages under statute, damages agreed upon within a valid contract, or damages under common law.
Under the common law, damages for a reasonable notice period is fact-dependant. Courts will consider several different factors when determining the reasonable notice period, including the following:
- Length of service;
- Remuneration of the employee;
- Nature and character of the employee’s position and duties;
- Experience, qualifications, and training of the employee;
- Availability of similar employment.
Aggravated damages (now merged with moral damages) are a type of compensatory damage awarded to compensate for intangible injuries and mental distress. Specifically, such distress must arise from the harsh, insensitive, or dishonest manner in which the employee was dismissed, whether pre- or post-dismissal.
While moral damages used to be awarded by way of a lengthened reasonable notice period, they are now awarded as a lump sum payment for aggravated damages.
Punitive damages focus on the defendant’s conduct rather than the plaintiff’s loss, and are often awarded with the goal of deterring and denouncing such conduct. Punitive damages are only awarded when compensatory damages are insufficient to achieving these goals, and require that the defendant’s action be deemed to be reckless, harsh, malicious, and reprehensible to the point of being independently actionable.
Depending on the facts of the employee’s matter, they employee can also claim for tort damages, including for defamation and intention infliction of mental suffering. Tort damages aim to restore the employee back to the position they were in prior to the wrongful act.
Human Rights Damages
Human rights damages can be obtained through the civil courts if there are other civil claims within the Statement of Claim—otherwise, human rights damages must be obtained through the Human Rights Tribunal of Ontario (“HRTO”) or the Canadian Human Rights Tribunal (“CHRT”). A more thorough analysis of the types of discrimination under the Ontario’s Human Rights Code can be viewed in our previous article, “The Ontario Human Rights Code – A Primer”.
The type of monetary damages that can be awarded at the HRTO and CHRT include general damages and special damages.
General damages are awarded to compensate the individual for injury to their dignity, feelings, and self-respect as a result of the discrimination they suffered.
Special damages, on the other hand, compensates the individual for money that they have lost or been forced to spend because of the discrimination, with the purpose of putting them back in the financial position they would have been in had the discrimination had not occurred. Special damages can include damages for lost wages, benefits, and bonuses, as well as out-of-pocket expenses.
If you are an employer or an employee needing assistance with your workplace and legal disputes, our team of experienced legal professionals at Achkar Law can help. Contact us by phone toll-free at 1-(800)771-7882 or email us at email@example.com and we would be happy to assist.
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Disclaimer: This blog is not intended to serve as, or should be construed as legal advice, and is only to provide general information. It is in no way particular to your case and should not be relied on in any way. No portion or use of this blog will establish a lawyer-client relationship with the author or any related party. Should you require legal advice for your particular situation, fill out the contact form, call 1-(800)771-7882, or email firstname.lastname@example.org.
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