Written By Ranjan K. Agarwal, Carl Cunningham and Michelle D. MacGillivray

In 2008, the Human Rights Code was amended to allow, amongst other things, civil claims for breaches of the Code. Though we often see plaintiffs alleging discrimination in the context of a wrongful dismissal or constructive dismissal claim, no Ontario court has ever awarded damages under this section. Until now.

In Wilson v Solis Mexican Foods Inc., Justice Grace found that Solis Mexican Foods Inc. breached the Code when it terminated Patricia Wilson's employment. As a Business Analyst, Wilson received a satisfactory performance review. Shortly after her review, she complained to her manager about back pain. Wilson's doctor recommended that Wilson take an indefinite leave of absence. After Solis reasonably asked for further information, Wilson's doctor recommended a gradual return to full-time hours. In the interim, Solis decided to restructure its business. On that basis, it dismissed Wilson's employment without cause and paid her two weeks' pay.

Wilson alleged that she was wrongfully dismissed and Solis breached the Code. Justice Grace awarded Wilson three months' reasonable notice. Further, he found that Solis failed to accommodate her disability and that her disability was a significant factor in its decision to terminate Wilson's employment. Justice Grace awarded Wilson $20,000 in damages for discrimination without referencing any cases from the Human Rights Tribunal of Ontario. Justice Grace also held that Wilson is "presumptively" entitled to her legal costs.

In our view, this decision is important for three reasons:

• the decision provides a precedent for plaintiff's counsel considering making a civil claim alleging discrimination (provided the action is not based solely on a breach of the Code, which is prohibited by section 46.1(2)) and may encourage similar claims, especially because the plaintiff will be awarded her costs unlike at the Human Rights Tribunal of Ontario;
• though the court did not rely on the legal test used by the Tribunal to fix the damages (the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination), the damages award is similar to disability discrimination awards made by the Tribunal; and
• Wilson did not ask for restitution or back wages (which the Tribunal often awards) and, as such, Justice Grace employed a traditional wrongful dismissal analysis”as such, we don't know whether courts will be comfortable with restitution awards in future, similar cases.