A History of General Damages Awarded by the Alberta Human Rights Tribunal
Damages awards arising from workplace human rights complaints have increased in Alberta in recent years. They jumped to a new high in last month, when the Alberta Human Rights Commission (“AHRC”) awarded $75,000 in general damages in a sexual harassment case.
How Did We Get Here?
AHRC damages awards can include, both, lost wages damages, and general damages, which are non-taxable. General damages are awarded for non-economic losses, such as physical pain and suffering, mental anguish, and emotional distress.
While there is no statutory limit on the amount in general damages that can be awarded in Alberta, prior to 2022 the high range of general damages the AHRC awarded was between $20,000 and $25,000.
That changed with the AHRC’s Yaschuk v Emerson Electric Canada Ltd. (“Emerson Electric”) decision in 2022.
In Emerson Electric, the AHRC awarded $50,000 in general damages after finding the employer’s human resources manager had sexually harassed the complainant.
A New, Higher Ceiling for General Damages
On March 8, 2024, the AHRC issued another historic decision in Oliva, Pascoe, and Strong v Gursoy, 2024 AHRC 45 (“Pascoe”).
In this case, the Tribunal increased its general damages ceiling to $75,000.
Broadly, Pascoe addressed the following complaints.
- Three complainants alleged the company CEO subjected them to workplace, gender-based harassment that ultimately resulted in the complainants’ termination.
- One of the complainants also alleged the employer and CEO discriminated against her on the basis of her physical disability. The details of this complaint included allegations that the CEO demanded details of the complainant’s medical condition beyond what was required to accommodate her.
- The complainants also alleged the CEO retaliated against them in response to their human rights complaints by filing civil claims against them.
The AHRC in Pascoe found the CEO sexually harassed the complainants. The AHRC also found the CEO discriminated against one of the complainants on the basis of physical disability. The AHRC made the following comments of note in Pascoe.
- The sexual harassment had a clear and profound effect on the complainants.
- The sexual harassment included touching and kissing the complainants without their consent.
- The frequency and duration of the sexual harassment occurred over several months, and the employer did not take steps to address the conduct.
- The employer terminated the employment of the complainants rather than address the CEO’s misconduct.
- The AHRC emphasized that privacy is a core value of our legal system, and medical information is some of the most private of personal information, and no employee has an obligation to disclose a specific diagnosis or other information that is not reasonably necessary for the employer to have to meet the employer’s duty to accommodate the ill or injured employee.
Ultimately, the AHRC awarded the following in general damages in Pascoe.
- $75,000 to the complainant who was the subject of both gender discrimination (by way of sexual harassment by the CEO), and discrimination on the basis of her physical disability.
- $30,000 to a complainant who was the subject of gender discrimination (by way of sexual harassment by the CEO). The Tribunal noted the lesser award was in large part because of the shorter duration (just over one month as opposed to several months) of the misconduct.
- $50,000 to the last complainant who was the subject of gender discrimination (by way of sexual harassment by the CEO). The Tribunal noted the longer duration of the misconduct, and the complainant’s pregnancy making it more difficult for her to quit her job to escape the sexual harassment in making the award.
All three complainants were also awarded lost wages damages.
Key Takeaways for Employers
Relative to other human rights commissions in Canda, the AHRC has historically had the reputation for taking a more conservative approach towards general damages awards. This is changing.
With rising damages awards from the AHRC, employers are encouraged to take the following preventative steps, some of which are also statutory requirements under the Alberta Occupational Health & Safety Act.
- Introduce and enforce workplace policies to prevent and address workplace discrimination, violence, and harassment (note, this is a statutory requirement).
- Respond diligently and in a timely manner to workplace violence and harassment complaints (this is also a statutory obligation).
- Train all employees with regard to their obligations to maintain a workplace free of discrimination.
- Ensure workplace accommodation requests are considered fairly and diligently, and keep records of each step taken.
- Ensure employers ask employees questions when the employer has reason to suspect a human rights issue may exist (e.g. when the employer has reasonable grounds to suspect the employee may have a substance dependency).
- Ensure all workplace practices, policies, and procedures do not violate the Alberta Human Rights Act.
Neuman Thompson’s knowledgeable and experienced team of lawyers can assist employers with any of the above recommended measures, as well as with preparing comprehensive responses to any human rights complaints that may arise.
Disclaimer: This information is not provided as legal opinion or advice. For further information or assistance with applying or interpreting the new rules, please contact any of the lawyers at Neuman Thompson.