Guide to Remedies
What are remedies?
A legal remedy is a way of addressing a wrongful act inflicted on one person by another (or by a group of people). The Human Rights Code (“The Code”) is remedial and is not meant to punish. It is a law that aims to educate the public and create awareness about discrimination and human rights. Settlements and adjudication awards are intended to make up for the loss and damages experienced by the complainant as a result of some discrimination, harassment or other contravention of The Code. Monetary settlements and awards do not make the complainants better off than they would have been had the contravention not occurred.
Is it necessary to document the settlement?
The mediator will offer to draft a Memorandum of Agreement to assist the parties in understanding and acknowledging the terms they have agreed on to resolve the complaint. Once signed the complaint does not proceed further through the process. This documentation is proof of the agreements entered into by each party and assists in ensuring each party follows through.
What does a settlement offer usually contain?
A settlement offer may contain anything the two parties agree to as long as it is legal. Not every settlement contains a monetary component. The most common terms of settlement are listed below:
- General Damages
- Letter of Reference
- Lost Wages
- Re-instatement of opportunity that was denied
- Special Damages
- Confidentiality Clause
The respondent may agree to accommodate the complainant in a specific manner such as by providing equipment to accommodate a disability or by transferring the complainant to another position or modifying duties.
The respondent may provide an apology letter or agree to provide a verbal apology.
The respondent may agree to take or provide some or all of their employees with human rights (or other related education) such as one of the Commission’s workshops or sensitivity or diversity training.
The respondent may agree to compensate the complainant financially for injury to dignity, self respect and feelings as a result of the discrimination. The amount of compensation can vary widely depending on the severity of the harassment or discrimination set out in the complaint.
The respondent may provide a letter of reference or letter confirming the complainant’s dates of employment to assist a complainant in finding new employment. In addition to agreeing to the wording in the letter, the parties should consider whether it be provided on company letter head, how many original signed copies will be provided and if the letter writer will provide the same information in the letter if someone were to call them for a reference.
The respondent may agree to provide any lost wages or other income that would have been earned by the complainant had the discrimination or harassment not occurred. Lost income may include wages, commissions, bonuses or incentives, tips, or other employment benefits.
The respondent may agree to implement a new policy or change an existing policy. Although the Commission cannot write or “approve” a policy, there are example polices on the Commission’s website that the respondent is free to copy and use as a basis for their own policy. A mediator is able to provide some general information and guidance in this process.
The respondent may offer the complainant an opportunity that was previously denied such as an apartment for rent or rehiring an employee who was terminated.
The respondent may offer to compensate the complainant for out of pocket costs incurred by the complainant because of the contravention of The Code such as prescription expenses because their employment related health benefits were covered. The complainant will ordinarily have provided proof of these expenses to the respondent by way of receipts.
Either or both parties may agree not to discuss the details of the settlement, the details of the complaint, or that a complaint was filed with the Commission (except for with an immediate family member, legal counsel and accountants/banking and where required by law). Regardless as to whether the parties have signed a confidentiality clause the Commission may use the settlement as an example for educational purposes, without identifying either party.
The complainant may agree to sign a Release that prevents him or her from taking any legal action in the future against the respondent related to the subject matter covered in the complaint under The Code (or sometimes in other settings as well, such as Employment Standards, labour Board, civil proceeding etc.).