Written on behalf of Peter McSherry
The remedy of reprisal is intended to compensate a person who has been punished for doing the right thing. It is a form of “whistleblower” protection similar to that which was discussed in a recent post.
This post discusses three forms of relief from acts of reprisal. The first is fairly well-known. This remedy is found in the Human Rights Code. In essence, should the employer take retaliatory action against an employee for threatening to bring or bringing a human rights complaint, there is a case made out for reprisal. This relief also is allowed to a person who declares support for such a complaint and in turn, is subject to adverse treatment.
The most important aspect to a reprisal case is that the underlying complaint need not succeed for success in the reprisal claim to follow. For example, should Mary assert a sexual harassment case against a co-employee and the company terminate her employment due, even in part, to this complaint, her reprisal claim against the company does not mandated success in the sexual harassment case. Mary’s threatened case must only be made in good faith, which has resulted in the retaliatory action.
A second important consequence is that the employer is usually not responsible for a sexual harassment case. It is, however, directly liable for a reprisal case.
The human rights remedy for reprisal may include lost wages to the date of hearing, damages for injured feelings and reinstatement. Clearly it is a very powerful remedy.
The second claim for reprisal comes against only publicly traded companies, listed on a public exchange such as the Toronto Stock Exchange. By very recent amendments to the governing legislation, the Securities Act, should a public company take adverse action in the same fact situation, this legislation also allows a remedy for reprisal. Again in this case, the underlying complaint need not succeed as a condition of winning the reprisal claim. Just as is the case with the human rights remedy, the initial complaint, as in this example, of sexual harassment, must be one brought in good faith.
This relief is unusual. Success will allow for lost income to the date of hearing at twice the normal pay rate and reinstatement. This is the only remedy allowing for such a doubling concept in all jurisdictions in Canada. It is unique.
Just as is the case with the remedy of statutory reprisal discussed recently, the onus of proof, that is, the obligation to prove the case is reversed. Instead of the employee needing to prove reprisal, the employer must prove its innocence of the claim. This is a very important provision in favour of the employee.
Apart from the above remedies which arise from these two specific statutes, should an employer terminate a person due to declared support for a colleague contemplating a form of law suit or human rights case against the employer, a case will made out for “aggravated damages” or emotional suffering due to such a violation of the implied duty of good faith and fair dealing. The same remedy will be available to person making the complaint directly. If Mary threatens to file a human rights complaint against the employer, for example and termination results, she may also sue in civil court for the same aggravated damages. Significant sums have recently been awarded by civil courts for such claims.
Get Advice Before You Act
If you are the victim of retaliatory action taken against you for “doing the right thing”, get advice before you act. There may well be many options of legal remedy available to you. Each one has advantages and disadvantages. You need a qualified lawyer to advise you of your rights and remedies.