More and more, victims of sexual harassment and sexual assault are seeking justice through Ontario’s Human Rights Tribunal system.
There are a few reasons for this. Criminal courts do not award monetary compensation for victims. Seeking justice through the criminal court system can be a gruelling, intimidating, and de-humanizing process for individuals who have been traumatized by sexual abuse.
Victims often go the civil route to achieve justice, which allows them to seek monetary compensation for the physical and mental harm that has been inflicted upon them by their abusers.
The Human Rights Tribunal is often easier to navigate than the Superior Court of Justice system. There are way fewer rules and claims often get heard faster compared with the traditional court system which can take years to see the inside of a courtroom.
Lately, Ontario’s Human Rights Tribunal has also been awarding larger damages to successful applicants, making it an even more appealing forum. While the norm used to be $25,000 to $40,000 damage awards, much larger awards are becoming common. The high water mark for an Ontario Human Rights Tribunal award for sexual assault and harassment is around $200,000.
With the Tribunal system becoming an increasingly popular venue for pursuing justice, questions are being raised as to whether the Tribunal system should start adopting similar rules and practices as the formal court system.
Because the Tribunal system is a quasi-judicial body, it doesn’t need to comply with the rules of evidence and has no ability to award costs to successful litigants.
Part of the reason for this is because the Tribunal system was set up with the idea that people could use it as an alternative to the far more complex and expensive formal court system. The initial thinking was that it would be easy to navigate without a lawyer.
However, these days most people and companies have insurance. If they get sued, their insurance company appoints a lawyer to defend them. Plaintiffs in the Tribunal system often need to retain a lawyer, otherwise they are stuck going up against a defendant who has experienced counsel. It is expensive to litigate in the Tribunal system, and successful litigants should be able to recover their costs just like they would be able to in the court system.
One of the pillars of our formal court system is that it is public and transparent. Anyone can attend court to watch proceedings, and documents filed in court actions are almost always accessible to the public.
This is not the case in the Tribunal system. Documents and records are typically not readily publicly accessible, which is something the Toronto Star recently took issue with.
Recently, the Star launched a constitutional challenge against the province over the restrictive access to Tribunal documents. In many cases, the Tribunals require people to file “Freedom of Information” requests to access Tribunal documents. The Court agreed with the Star that Tribunals needed to implement changes to be more open and accessible.
Ontario Tribunals must make changes to become more transparent and allow litigants to recover costs. Important cases are litigated in the Tribunals, especially with respect to sexual harassment and abuse. These changes are long overdue.
Author - Extraordinary Damages in Canadian Employment Law