How is ‘Reprisal’ Defined in This Context?
The filing or the threat to file a human rights complaint offers, in itself, protection to the person making the complaint. Any action taken in retaliation to this will lead to a remedy in favour of the employee. This is known as the reprisal remedy. This is to be distinguished from the reprisal remedy for sexual harassment cases. Often the two types of reprisal are confused. This reprisal remedy or “general reprisal” refers specifically to action taken by the employer due to the filing of a complaint or the threat to do so.
The intent of the legislative remedy is to avoid the punishment of the complaining party.
Establishing a Claim for Reprisal
Suppose, for example, a woman complains that she has been treated adversely due to her gender and then is terminated immediately thereafter.
There are then three possible cases. The first is that the conduct of termination was a reprisal due to the making of the complaint. The second is the basis of the complaint itself. The third case is a general wrongful dismissal case.
To succeed in the reprisal case, it is not necessary to succeed in proving the basic complaint. The reprisal case does require that this complaint is made in good faith. In the case of a termination, the claim will allow for the same remedies as in any human rights claim.
To succeed on the reprisal claim, it must be shown that the employer intended to terminate due to the filing of the human rights complaint. As in all human rights cases, this “intent” must only be influential in the termination decision and not the sole reason.
Absent a contract containing a fixed term of employment, such a claim will allow for a lost income claim to the date of hearing, compensatory damages for injured feelings and also possible reinstatement.
Wrongful Dismissal a Valid Alternative
Ontario has unusual legislation which allows the employee to sue for human rights remedies in civil court. For this reason, the employee can include not only the potential remedies noted above, but also may include an alternative claim for wrongful dismissal damages. The benefit of the alternative claim is that it is not necessary to prove that the termination was retaliatory or somehow linked to gender issues. As long as there is no just cause for termination, the remedy for wrongful dismissal, as an alternative claim, will still be available.
Ontario courts have yet to make an award for reinstatement in applying a human rights remedy, but there is no reason why this should not eventually be the case.
A Note on Potential Damages
In addition, the limitation period for the civil action is two years, whereas that for a human rights case in the traditional administrative remedy is one year.
As is the case with all compensatory human rights damage awards, the claim for injured feelings is non-taxable. The awards vary but the general wide range is $5,000 to $25,000.
The awards for lost income are not straightforward as the claim is based on what would likely have followed, absent the dismissal. If the employer can prove that the department where the employee worked was about to close in any event, the damage claim is so limited. Absent such factors or a fixed-term contract already in existence, the lost income claim can be considerable.
Any termination with the hint of reprisal should be reviewed in detail with legal counsel. This much is clear. It is a rare event, but any contract with the Government of Ontario is automatically capable of revocation without compensation in the event of a human rights violation.
Employees’ Take Away
A fundamental understanding of your rights is important to know just when to call for advice. This reprisal remedy is an important one. Many people would not expect that the success of a reprisal case need not require winning the underlying complaint.
Get Advice Before You Act
This is a good example of the nuances of human rights remedies. Get Advice. Contact the offices of Toronto employment and labour lawyers Mallins Law. We regularly advise employees and employers on legal employment issues. Contact us online or by phone at 647-792-0310 to schedule a consultation.