Labor & Employment Law

Assessing the Amount of General Damages

By Michael Fitzgibbon

For a variety of reasons, the subject of "general damages" will come up in the course of settlement discussion.  The plaintiff, complainant or grievor will want to have the settlement or some of it allocated towards general damages to take advantage of certain tax relief associated with classifying the payment in this way. 

Employers are often concerned about doing so - with reason in many cases. I won't deal with this complicated issue in this post.

The issue arises where, for example, there is a human rights element to the complaint.

The Ontario Human Rights Tribunal in a number of decisions has commented on the factors to consider in assessing the quantum of the award of general damages.  The leading case is Sanford v. Koop, most recently cited in Szabo v. Poley (October 30, 2007) The Tribunal summarized the following factors to be used in assessing the appropriate quantum of general damages for the violation of the right to be free from discrimination:

• Humiliation experienced by the complainant
• Hurt feelings experienced by the complainant
• A complainant?s loss of self-respect
• A complainant?s loss of dignity
• A complainant?s loss of self-esteem
• A complainant?s loss of confidence
• The experience of victimization
• Vulnerability of the complainant
• The seriousness, frequency and duration of the offensive treatment

The Tribunal awarded $8,000 in general damages in the circumstances of the Szabo case.  Once again, the Tribunal emphasized the ?power imbalance? between the employer and employee in most individual employment relationships which it viewed as especially "pronounced in the type of employment in this case, where workers earn low wages doing relatively unskilled work."

Full post as published by Thoughts from a Management Lawyer on November 06, 2007 (boomark / email).