Summary
A recent Human Rights Tribunal of Ontario (the “Tribunal”) decision highlights the Tribunal’s continued reliance on its past decisions to determine appropriate damages awards in human rights claims, while also signalling an evolving approach to damages. In particular, the Tribunal’s decision in McConnell v. Hibbert, 2026 HRTO 579 (“McConnell”), demonstrates how inflation could push damages awards higher, even where the misconduct at issue falls within established cases and categories. This article explores the Tribunal’s reasoning, the emerging role of inflation in damages analysis, and the implications for employers navigating human rights disputes.
Background Facts
In McConnell, the applicant filed an application to the Tribunal alleging discrimination and harassment on the basis of sex in employment, contrary to the Ontario Human Rights Code (the “Code”), filing the application against a respondent employer, as well as a respondent individual. Specifically, the applicant alleged that the respondent individual, an executive of the management company who operated the site at which the employee was working, rubbed against him in a sexual manner, put a hand on his back and his lower abdomen, and proceeded to move his hands up towards the applicant’s neck and beginning to choke him while positioning himself behind the applicant, before walking away.
The employer respondent had previously settled directly with the applicant, who then sought to continue the application against the individual who had allegedly engaged in the harassment. The individual respondent did not participate in the proceeding.
The Tribunal’s Decision
The Tribunal held that the individual respondent’s actions amounted to sexual harassment in employment, on the basis that: the individual respondent exercised employment-related control over the applicant, the incident occurred in the applicant’s workplace and in the course of the applicant’s duties, there was no basis on which the incident could reasonably be interpreted to be welcome because the parties did not know each other at the time, and the incident was sexual by its nature.
The Tribunal then proceeded to review its decisions in the preceding decade where an allegation of sexual harassment involving an actual assault was substantiated, to outline the potential range of damages. These cases, issued between 2018 and 2024, provided a damages range of $42,500 to $200,000.
Of the cases reviewed by the Tribunal, the cases with damage awards upwards of $75,000 involved what the Tribunal described as “egregious sexual assault”, “numerous serious incidents of sexual assault”, and/or other aspects of discriminatory treatment or reprisal. Cases awarding $75,000 included aggravating factors of sexual comments, age, power imbalance, sexual solicitation, or impact on the applicant. The cases awarding $42,500 and $55,000 involved incidents of a single incident of sexual assault.
The Tribunal ultimately awarded the applicant $75,000 as damages for injury to dignity, feelings and self-respect. The Tribunal held that the sexual harassment experienced by the applicant was on the “less serious” end of the range on the basis that there was only one incident, and no prior or subsequent verbal conduct; however, the fact that the incident occurred before the applicant was introduced to the respondent was considered to be aggravating.
Notably, however, the Tribunal relied upon “inflation as a factor to consider in comparing past awards to present”, appearing to justify a higher damage award closer to the middle of the range.
Takeaways
Tribunal precedent can be helpful for workplace parties when assessing potential risk and potential damages. As a result of McConnell, the potential for an increased damages award due to inflation will be an additional factor to consider when reviewing such decisions.
The Tribunal’s comments relating to inflation will be applicable not only in sexual harassment/sexual assault cases, but all types of human rights cases – such as allegations of discriminatory treatment in the workplace, an employer’s failure to investigate incidents of harassment, and any direct liability for such incidents, and reprisal.
While the Tribunal did not provide any clear direction for how inflation will be considered to increase a damage award, it may operate to push the appropriate damage award, based on similarity with previous cases, into a higher tier.
Need More Information?
For more information or assistance with human rights issues, contact Alyssa Johnson at ajohnson@filionlaw.com or your regular lawyer at the firm.