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Human Rights (Ont) - Civil Remedy Allowed [HRC s.46.1]. MINKARIOUS v. 1788795 ONTARIO INC.
In MINKARIOUS v. 1788795 ONTARIO INC. (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a Small Claims Court appeal, here brought against findings that the respondent "had been constructively dismissed from her employment ... and awarded her damages for constructive dismissal of $14,800.00. He also awarded $20,000 pursuant to s. 46.1 of the Ontario Human Rights Code, R.S.O. 1990, c. H. 19 (the “Code”)."
The court considered the awarding of human rights 'damages', here as ancillary to a successful wrongful dismissal claim - and their quantum:The Human Rights Code Claim:
[59] The Human Rights Code codifies that every person has a right to equal treatment with respect to employment without discrimination because of, inter alia, disability in s. 5(1).
[60] In Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799, Grace J. awarded damages for breach of the Code. This case was relied upon by Ms. Minkarious at trial. In Wilson, the plaintiff had a back ailment and went off work at the behest of her physician. She was then deemed to be capable of returning to work on a graduated basis. The employer would not agree to the gradual return to work, instead insisting upon a return to full-time hours and duties before making the transition back to the workplace. Subsequently, when the company reorganized, the plaintiff was terminated.
[61] Grace J. reviewed the case law and noted at para. 56 that “a decision to terminate an employee in whole or in part—on the fact that employee has a disability is discriminatory and contrary to the Code. If an employer regards disability as a factor justifying termination (or other negative treatment), the employee in question is not receiving “equal treatment…without discrimination” as s. 5(1) of the Code requires”. Thus, it is sufficient if a disability is a factor and not the only or primary factor in the decision to terminate.
[62] Grace J. relied upon s. 46.1 of the Code which authorizes a court, in a civil proceeding, to pay monetary compensation where a party has infringed a “right” of another party. He examined legal precedent that indicated that these awards encompass humiliation, hurt feelings, the loss of self-respect, dignity and confidence by the complainant, the experience of victimization, the vulnerability of the complainant and the seriousness of the offensive treatment.
[63] Grace J. made an award of $20,000.
[64] I note that the Ontario Court of Appeal reviewed damages assessments for Code violations in Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520. The award of $20,000 is within the range of cases noted, although the cases are all fact specific.
[65] In his Reasons, the Deputy Judge cited heavily from Wilson. He made a specific finding that the constructive dismissal occurred as a result of the plaintiff’s disability. Thus, he found that the disability was a reason why Ms. Minkarious was constructively dismissed.
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[67] The Appellant relies upon Dilbert v. Environmental Contracting Services Inc., 2020 HRTO 341, for the proposition that the duty to accommodate is a “two way street” and Ms. Minkarious had a duty to cooperate in formulating a return to work with Ms. Knight. The Tribunal referred to Central Okanagan School District No. 23 v. Renaud 1992 CanLII 81 (SCC), [1992] 2 SCR 970, in which the Supreme Court of Canada described that the employee seeking accommodation is responsible for requesting accommodation and must facilitate the search for accommodation. In short, all parties to the accommodation process have obligations.
[68] But the dispute between Ms. Minkarious and the Appellant was not about a failure to accommodate as Ms. Minkarious’ doctor had not, on the evidence, yet cleared Ms. Minkarious to do any work. I do not interpret Wilson as requiring a failure to accommodate in order to ground an award of damages under s. 46.1 of the Code. In Strudwick, supra, the Court of Appeal identified two main aspects of abuse, the employer’s general treatment of the employee being separate from its conduct in relation to accommodating her disability.
[69] The issue was properly identified by the Deputy Judge as whether the disability was one of the causes that led to the conduct that constituted the constructive dismissal.
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[71] I find that the Deputy Justice made the requisite finding to award damages under the Code. His assessment of damages is entitled to deference and is within the awards made for similar claims. I would not interfere.
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