The new amendments to the Ontario Human Rights Code permit litigants, finally, to claim full discrimination damages in the courts, and an apparent limitation on this right may be no limitation at all.
The statutory wording is a study in ambiguity.
In Seneca College of Applied Arts and Technology v. Bhadauria,  2 S.C.R. 181, the Supreme Court of Canada held that the courts could not enforce the Human Rights Code(“the Code”).
The Code amendments, passed on December 5, 2006, come close to making Bhadauria a dead issue. Section 42.2(1) states, “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,” then the court may award monetary compensation or non-monetary restitution.
I will come back to what might be non-monetary restitution.
OK, so now the court has full jurisdiction, but then comes an apparent limitation in section 46.2(2): “Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I.”
Undoubtedly, with this limitation, the legislature was thinking about giving plaintiffs claiming wrongful dismissal or sex assault the right to one-stop shopping for remedial jurisdiction where the facts disclose a Code infringement.
But not so fast. What is “an action based solely on an infringement”?
First off, subsection (1) says nothing about anyone commencing an action based on anything. All it does is to give a civil court remedial powers which are based on the court’s findings. There is no requirement that a plaintiff plead or prove anything. The subsection is simply a bald, broad statement of jurisdiction.
Of course, to access that jurisdiction, someone must commence an action. However, a limitation on a court’s jurisdiction must be read narrowly. Subsection (2) only requires that to access a court’s jurisdiction the plaintiff must plead something other than an infringement of the Code.
Therefore, the limitation is oddly confined to consideration of what a plaintiff’s action is based upon at the point of commencement.
There is no requirement that the non-infringement claim succeed or even that it have prima facie validity. Students of absurdity will note that there is not even a requirement that the non-infringement claim survive a Rule 21 motion based on substantive inadequacy.
Even if courts do require a plaintiff to plead something plausible in addition to the infringement claim, the requirement to plead something outside the Code may be met by pleading a tort disclosed by the same facts. There are already cases permitting discrimination claims to proceed in civil courts where they are dressed up as the tort of intentional infliction of mental distress.
Such a tort could almost always be pleaded in a discrimination case.
Also, simply pleading punitive damages should be sufficient to beat the subsection (2) limitation. Just last September, prior to the Code amendments, the Court of Appeal held inKeays v. Honda Canada Inc. that punitive damages may flow in a civil action from proof of a Code infringement, the idea being that a claim for punitive damages was held not to be something based directly on the Code.
The last dying embers of Bhadauria way well have been stamped out.
Also, on another topic, what is the legislature thinking about with awards of “restitution” which are not monetary? Does this anticipate returning property taken in a discriminatory fashion? That must not come up often. Weirdly, the statutory provision for non-monetary restitution includes “restitution for injury to dignity, feelings and self-respect.” Would that be an apology by the perp? A week in the stocks? A flogging?