This is general information only. It is not legal advice about your situation. This publication is not a substitute for a lawyer’s research, analysis and judgment.
- What types of remedies can the Tribunal order?
- Financial compensation
- Non-financial remedies
- Public interest remedies
- What does an order from the Tribunal look like?
When you make an application at the Human Rights Tribunal of Ontario (Tribunal) under Ontario’s Human Rights Code (Code), section 10 of the application form asks you to fill in the remedies that you want. This information will provide a general overview of the types of remedies that the Tribunal can order. You can also consult the Applicant's Guide on the Tribunal’s web site.
The Code gives the Tribunal broad powers to make orders and to award remedies. The word remedy refers to the outcome you are looking for from the Tribunal. The Tribunal’s powers to grant remedies serves two main purposes - to provide financial compensation to the individual applicant and to prevent future acts of discrimination.
There are three types of remedies the Tribunal can order if discrimination is found:
- Financial compensation to the Applicant (often called “damages”)
- Non-financial measures that benefit the Applicant
- Measures to address the broader public interest (called “public interest remedies”)
What types of financial compensation can I ask for?
The Tribunal can order two types of financial compensation:
- Money to compensate you generally for the loss of the right to be free from discrimination, including the insult to your dignity (also known as “general damages”)
- Money to compensate you for any special financial costs that you experienced because of the discrimination (also known as “special damages”)
What are general damages?
You are entitled to be free from discrimination. General damages are intended to financially compensate you for injury to your dignity, feelings, and self-respect as a result of the discrimination.
What are special damages?
Special damages are intended to compensate you for money that you have lost or been forced to spend because of the discrimination. This type of financial remedy is meant to put you back in the financial position you would have been in if the discrimination had not occurred in the first place.
You can claim different types of special damages depending on whether the discrimination happened in employment, in housing, or in another area that is covered by the Code. Every case is different. Ask yourself if you have had to pay for something, or lost something with a monetary value, because of the discrimination. If so, you can include that cost in the financial remedy that you ask for in your application.
Examples of special damages if you experienced discrimination at work
In an application claiming workplace discrimination, you might claim financial compensation if you experienced any of the following:
- Lost income/wages (i.e. if you were terminated, based on a discriminatory reason, and had difficulty finding another job)
- Lost benefits (i.e. long term disability, health/drug benefits, etc.)
- Lost bonuses or a commission that you would have made if you had not been discriminated against
- The difference in income between your old job (where you were discriminated against) and your new job (that you found after the discrimination)
- Loss of statutory employment-related benefits (such as maternity benefits under the Employment Insurance Act)
- Out of pocket expenses (such as job search costs or relocation expenses)
Examples of special damages if you experienced discrimination in housing
In an application claiming discrimination in housing, you might ask for financial compensation to cover the following costs:
- The rental deposit that you paid to the landlord who discriminated against you
- Your moving expenses if you were forced to move because of discrimination and/or harassment
- The difference in rent between your previous rental unit (where you were discriminated against or harassed) and your new housing (that you found after the discrimination) if your new rent is higher
How much financial compensation should I ask for?
You should fill in section 10 of the application form with as many details as possible about how much money you want, including how you calculated that amount. To decide how much money to claim as your financial remedy, you will want to add up the amount for general damages and for special damages.
How much money should I claim for my experience of discrimination (general damages)?
It is hard to put a dollar amount on the hurt you have experienced because of discrimination. The Tribunal will compare your facts with the facts in other decisions and consider the amount of awards in similar cases. Some of the factors considered by the Tribunal in making a decision about how much to award include:
- The impact that the discrimination had on you
- How badly you were treated
- Whether the discrimination happened on one occasion or over a long period of time
Although there is technically no limit on the amount of damages that could be awarded, over the past few years the Tribunal has generally ordered between $5,000 and $15,000 as general damages for the hurt and loss of dignity associated with the experience of discrimination.
How much money should I claim for my specific costs or expenses (special damages)?
It is useful to consider examples. If you lost your job because of discrimination, you should calculate the amount of earned income that you lost each week that you were unemployed. For example, if you earned $10 per hour and you were off work for 10 weeks, you would ask for:
$10 per hour x 35 hours per week x 10 weeks = $3,500
If you are still unemployed, you will not be able to give a final figure. You can fill in the form by asking for lost wages at the rate of $10 per hour x 35 hours per week.
Or, if a landlord refused to rent an apartment to you for a discriminatory reason, and as a result, you had to rent a more expensive apartment, you can ask for the difference in rent for a reasonable period of time. If you were evicted for a discriminatory reason, you could also claim your moving costs.
For example, if the difference in rent is $200 per month, you could ask for:
$200 X 12 months = $2,400
Moving truck costs = $840.00
Sometimes it is difficult to include a final and exact figure in the application form. It may be too early for you to know the full financial impact of the discrimination. In that case, you can complete the form by telling the Tribunal the basis for your special damages claim.
For example, you can include on the application form the monthly amount of your lost wages or your increased rent. Write on the application form that you are seeking financial compensation in that monthly amount from the date of the discrimination to the date on which the Tribunal makes a decision on your application.
Do I have a duty to minimize my financial losses?
Yes. Although you have a right to ask for compensation for your financial losses, you also have duties and obligations under the Code to “mitigate" your losses. This means that you must actively try to limit or lower the size of your financial loss resulting from the discrimination and/or harassment.
For example, if you are fired from your job, you have the duty to look for another job at a similar wage level. If you were denied an apartment, you should look for an apartment that is a similar size and that rents for a similar monthly amount.
If you do not try to take reasonable steps to limit your financial losses, the Tribunal will reduce the amount of money that it will award to you as compensation. For example, the Tribunal would not likely award you an amount for lost wages if you refused to accept a reasonable job offer.
It is very important to document your efforts to limit your losses. Keep copies of your job applications or searches and the contacts you make if possible, and keep a record of housing searches.
Can the Tribunal order the Respondent to pay interest on my financial compensation?
Yes. The Tribunal orders interest at the rate established for civil litigation in the Ontario court system, under legislation called the Courts of Justice Act.
The Tribunal may order pre-judgment and post-judgment interest on any amount of money that is awarded to you including:
- Interest on compensation for injury to your feelings or dignity (general damages)
- Interest on compensation for your actual financial losses and out-of-pocket expenses (special damages)
Post-judgment interest is generally ordered to run from the date of the Tribunal order until full payment is made.
Pre-judgment interest is more complex. The Tribunal may treat your general damages award (compensation for injury to feelings and dignity) differently from your special damages award (compensation for financial losses and out-of-pocket expenses).
What non-financial remedies can the Tribunal order?
The Tribunal can also order the Respondent to do something that will put you in the position you would have been in if the discrimination had not happened. For example, in an employment situation, the Tribunal could order:
- Reinstatement to your job
- A promotion
- An offer of employment
- The removal of a harasser from your work environment
- Letters of assurance of future compliance with the Code
- A letter of reference
If you experienced discrimination in housing or in using a service, you can ask for a suitable non-financial remedy that fits your situation. For example, if a landlord refused to rent to you for a discriminatory reason, the Tribunal can order the landlord to allow you to rent the next available apartment in his or her building.
What are public interest remedies?
The Tribunal can order a wide range of remedies that are “in the public interest.” These remedies are meant to have an impact on the broader community, including other people who could have been affected by the discrimination.
Public interest remedies can have an educational impact, giving other potential respondents and the general public a greater understanding of discrimination. Public interest remedies are often intended to prevent similar discrimination from happening in the future. The Tribunal could, for example, order a Respondent to:
- Change hiring practices
- Develop non-discriminatory policies and procedures
- Develop internal human rights complaint procedures
- Implement pro-active measures (such as a recruitment policy aimed at eliminating barriers for racial minorities)
- Implement education and training programs (such as having all staff receive training on a human rights policy)
- Publish an extract of the decision in the corporate newsletter
- Post the Human Rights Code in the workplace
- Require a property management company to send a memo to all superintendents/agents
- Make a donation to charity
- Ensure the CEO delivers racism training at the annual meeting
When an Applicant is successful with an application under the Code, a Tribunal order may look like the one below:
The Tribunal orders that:
- The Respondent is to pay $5,000 to the Applicant as monetary compensation for injury to dignity, feelings and self- respect. Post judgment interest will be payable on this amount from the date of this judgment, in accordance with the rate set under the Courts of Justice Act;
- The Respondent is to pay $4,276.00 to the Applicant as monetary compensation for lost wages. Prejudgment and post judgment interest will be payable on this amount, commencing from September 2009, in accordance with the rate set under the Courts of Justice Act;
- The Respondent is required to provide a copy of this decision to all current staff and administrators who have authority to conduct investigations under its human rights policy and procedures;
- The Respondent is required to review and modify its human resources policies to establish a process for the investigation of potential human rights violations that is consistent with the Ontario Human Rights Commission Guidelines on Developing Human Rights Policies and Procedures;
- The Respondent is required to distribute the new human rights policy and amended procedures to all employees; and
- The Respondent will publicly display a copy of the Code and its policy in the reception area.