In Strudwick v Applied Consumer ( 2015 CarswellOnt 12137 ) Dow J. awarded a 57 year old clerk of 12.5 years a notice period of 24 months, $20K for human rights , $19K for intentional infliction of mental distress, and $15K for punitive damages. The Court reviewed the conduct of the employer once the employee became deaf which then lead to her dismissal. There was a complete refusal to accommodate her deafness, including refusing to assign a person to notify her when a fire alarm went off or even allowing her to reverse the direction of her desk so that she could see people entering the office.
The total judgement came to $109,940. The Plaintiff indicated that her full indemnity costs were $179,625. The Court awarded only $40,000 in costs as the Plaintiff spent too much time on the motion itself, which was actually a motion for default judgement. Thus the total amount awarded to the Plaintiff was $149,940. If her lawyer actually charged her what he said he had incurred as time, then the plaintiff would owe her lawyers an the sum of $29,686. Hard to see how this case benefitted the plaintiff.
Perhaps this occurred because the Plaintiff’s position before the Court was that she should receive a notice period of 8 years and 5 months, because that is when she would turn 65 and with her disability it is highly unlikely that she will ever obtain alternative work . The Court awarded her the highest end of the notice period, namely 24 months.
The Plaintiff may have more success had she applied the human rights measure of damages rather than the wrongful dismissal analysis. In the human rights analysis , you put the person in the same position they would have been had the discrimination not occurred. In this case had the employer properly accommodated her and not fired her because of her disability, she would presumably still be working there. The OHRT certainly has the power to reinstate an employee with full back pay and since the Court can enforce human rights just like the Tribunal , this would have been a great time to see if the Court would have exercised that power. Even if the Court would not have reinstated her they still could have awarded damages equal to what reinstatement would have achieved. This type of future damage award is routinely given in personal injury cases to compensate for future income loss. There is no rational reason why the same approach could not be applied in human rights cases.
The Ontario Court of Appeal later increased the damages substantially from a total of $109,940 ( excluding costs ) to $246,049 ( excluding costs) on the basis that the amounts awarded, other than notice, were inadequate given the outrageous conduct of the employer. However the Court did not increase the trial judges award for costs of $40,000 and awarded a further $20,000 for costs of the appeal.
Thus at the end of the day , the Court awarded the plaintiff the sum of $304,049 for which her lawyer said he will charge her , for the trial only, the sum of $179, 625. This means that before paying for the appeal, the plaintiff is up $124,424. Even if she was only charged say $25,000 for the appeal, this means that she will net maybe $100,000.
The cost to the employer ? The judgement of $304,049 plus their own lawyer ( maybe $150,000) for a total cost of around $450,000.
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