Tribunal affirms that remedies can be pursued in multiple forums

On February 12, 2025, the Human Rights Tribunal of Ontario (the “Tribunal”) released its decision in Li v. CMR Kumra Medicine Professional Corporation.¹ In this case, the Tribunal affirmed, among other things, its remedial authority to award damages, the consequences of failing to respond to a human rights application, and that remedies can be pursued in multiple forums provided that another proceeding has not appropriately dealt with the substance of the alleged Human Rights Code (the “Code”) violations.

The employer’s conduct

The Applicant, a receptionist, was notified by her employer, while on maternity leave, that her work schedule would be changed significantly. Specifically, the number of hours she was required to work was to be increased from 4 days a week for 30 hours to 5 days a week for 45 hours. Upon returning to work, the Applicant also experienced a hostile work environment that involved the employer giving her increased job duties without providing her with adequate training, berating her in front of patients, and the receipt of aggressive text messages from a new co-worker. Finally, the Applicant was informed by the employer that she was being reassigned to a different position in a new location for 30 hours a week. The Applicant refused to accept the changes and alleged constructive dismissal.

The Applicant’s employment standards complaint

As a result of the alleged constructive dismissal, the Applicant filed an employment standards complaint with the Ministry of Labour alleging a violation of her rights under the Employment Standards Act, 2000 (“ESA”). An Employment Standards Officer (“ESO”) issued a decision which concluded that the Applicant had been constructively dismissed by the employer and the Applicant was awarded $6,188.00 in ESA termination pay. In the decision, the ESO elected not to address the Applicant’s human rights complaints, stating that they were outside of the scope of the ESA and that the Applicant was “fully within her rights to pursue a claim with the Human Rights Tribunal.”

The Applicant’s human rights Application

The Applicant then filed an Application with the Tribunal in which she alleged that the employer discriminated against her in the area of employment on the basis of sex, including sexual harassment, her pregnancy, as well as family status contrary to the Code. The Tribunal released an interim decision, noting the employer in default for its failure to respond to the Application. As a result, the employer was deemed to have accepted all of the allegations in the Application, waived all its rights to notice or participation, and the employer was disentitled to any further notice with respect to the Application.

The Applicant argued that the substance of her Application was not addressed by her employment standards complaint. Therefore, the Applicant argued that the Tribunal had the remedial authority under section 45.2(1) of the Code to award damages for both (i) lost wages; and (ii) compensation for injury to dignity, feelings, and self-respect.

Pursuant to section 45.1 of the Code, the Tribunal may dismiss an application, in whole or in part, if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of an application.

Additionally, subsection 45.2(1) of the Code sets out the Tribunal’s remedial powers to order monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings, and self-respect.

The Tribunal determined that while the ESO did have the jurisdiction to deal with the Applicant’s Code claims, the Applicant did not have the opportunity to meet her case for human rights damages. Accordingly, given that the ESO refused to address the Code complaints and advised the Applicant to seek remedies with the Tribunal, section 45.1 of the Code did not apply to dismiss the Application.

In assessing the Applicant’s evidence, the Tribunal determined that the Applicant’s Code-protected rights were breached when: (i) the employer denied her the opportunity to return to her pre-maternity leave position by increasing her weekly hours; and (ii) the employer moved her to another position in a different office for the purpose of giving her job to a co-worker.

In terms of damages, the Tribunal re-iterated that an award of compensation for an injury to dignity, feelings, and self-respect recognizes the inherent value to be free from discrimination and the experience of victimization. Since the Applicant had suffered anxiety and depression, as well as a breakdown of her marriage because of the employer’s conduct, the Tribunal determined that the Applicant deserved compensation at the high end of the relevant range for damages. Further, the Tribunal affirmed that it was also able to award the quantifiable loss of income that the Applicant experienced following the constructive dismissal of her employment (less the termination pay already ordered by the ESO).

Ultimately, the Tribunal ordered the employer to pay to the Applicant (i) $23,359.00 in lost wages following the constructive dismissal; and (ii) $20,000.00 in monetary compensation for injury to the Applicant’s dignity, feelings, and self-respect.

1. Human rights complaints cannot be ignored: Employers who fail to respond to human rights applications will be deemed to have (i) accepted all of the allegations set out in the application; (ii) waived all rights to participating in these proceedings; and (iii) are not entitled to further notice with respect to the application.
2. Remedies can be pursued in multiple forums: Provided that another proceeding has not appropriately dealt with the substance of the alleged Code violations, a human rights complaint can proceed even if there is an ongoing employment standards complaint or wrongful dismissal litigation.
3. Changes to employment during Code-related leaves of absence: Employers should proceed with caution when making any alterations to a position while an employee is on a Code-related leave of absence.
4. Constructive dismissal can lead to additional legal challenges: Employers must consider the implications of their actions and legal challenges that can arise in the context of a constructive dismissal.
5. Damages awards can be significant: The Tribunal can award significant damages for violations of the Code, which can include lost wages and compensation for injury to dignity, feelings, and self-respect.