Significant amendments to the Ontario Human Rights Code (the "Code") will come into force on June 30, 2008 as per the Human Rights Code Amendment Act, which received Royal Assent on Dec. 20, 2006. Although the amendments constitute a significant overhaul to the Code and its administration, this article will focus on those amendments that are particularly significant for employers.

Likely the most significant amendment from the perspective of an employer is s. 46.1 of the Code, which provides that in a civil proceeding, a court will now be able to make orders pertaining to the infringement of a right under the Code. More specifically, while individuals will still be permitted to bring a human rights complaint to the Tribunal as of June 30, they will also have the ability to launch a complaint as part of a civil claim involving a common law action. This could not be done prior to the amendments. An important limitation on the court's authority to hear such matters is that the action cannot be brought solely on the basis of a human rights violation, but rather the complaint has to be ancillary to a common law action, such as wrongful dismissal, constructive dismissal, breach of contract, etc.

Further, when deciding the outcome of a claim pursuant to s. 46.1, the court will now be in a position to award damages for human rights violations in the same manner in which the Tribunal is able to award damages. Consequently, in addition to ordering pay in lieu of notice, Wallace damages and/or punitive damages, the court will now be in a position to grant monetary and non-monetary awards, which formerly only the Tribunal could make. More specifically, the court will be statutorily empowered to award damages for the loss arising out of the infringement, which includes both monetary and non-monetary compensation as well as "for injury to dignity, feelings and self-respect." These awards may include reinstatement, letters of reference, apologies, etc.

Another noteworthy change for employers is the removal of the monetary cap for damages under the Code. Prior to the amendments, the Tribunal's jurisdiction to award monetary compensation for loss arising out of an infringement of the Code or where the infringement was engaged in wilfully or recklessly was limited to $10,000. However, the amendments to the Code have removed this monetary limit. As such, even if an employee decides to pursue a remedy via the Tribunal (as opposed to launching a civil action), the potential liability exposure for the employer has increased.

A foreseeable consequence of these amendments is that after June 30, 2008, more employees will likely bring human rights complaints in conjunction with a civil action for wrongful dismissal or constructive dismissal. The amendments will also put to rest the issue of whether an employee can bring a human rights complaint and an action for wrongful dismissal concurrently, as the court in Ontario has previously had a divergence of opinion on this issue.

The amendments to the Code are extensive and the implications will be significant in the employment law arena. As such, employers would be wise to familiarize themselves with these changes prior to June 30, 2008.

By Tennille P. McLeod

613.566.2819

tmcleod@perlaw.ca