The Canadian Human Rights Act (the “CHRA”) provides a monetary cap of $20,000.00 on the amount of damages the Canadian Human Rights Tribunal may award complainants for each finding of pain and suffering (subs. 53(2)(e)) and reckless or wilful discriminatory practices (subs. 53(3)). The cap has been in place since 1998.
These provisions have been the subject of ongoing scrutiny: in 2000, former Supreme Court of Canada Justice and Chair of the Canadian Human Rights Act Review Panel, Gérard V. La Forest, recommended “the removal of the limits on the amount of compensation that the Tribunal can award for what we would wish to see referred to as injury to ‘dignity, feelings and self-respect’.” Then, in 2022, former Supreme Court of Canada Justice Louise Arbour concluded that “removing the cap on damages would go a long way in increasing access to justice for complainants.”
Most recently, these provisions were the subject of a challenge before the Federal Court in Parkdale Community Legal Services v. Canada, 2025 FC 912 (CanLII). In this case, the Plaintiff argued that the statutory cap on monetary damages violates subsection 15(1) of the Canadian Charter of Rights and Freedoms and could not be justified under section 1.
On a motion for summary judgement, the Court concluded that there was no genuine issue for trial as the Plaintiff’s claims failed at the first step of the section 15 test – specifically, that the Plaintiff’s claims failed to establish that the CHRA’s damages cap creates a distinction based on an enumerated or analogous ground. Accordingly, the Court dismissed the Plaintiff’s claim.
In reaching its conclusion, the Court applied the two-step test to establish a prima facie violation of section 15 of the Charter which was established by the Supreme Court of Canada. Under the test, a claimant must prove that the impugned law or state action: (i) on its face or in its impact creates a distinction based on an enumerated or analogous ground; and (ii) imposes burdens or denies benefits in a manner that has the effect of reinforcing, perpetuating, or exacerbating a disadvantage.
The Plaintiff Failed at Step One of the Test
The Plaintiff argued that, under step one of the test, the monetary cap draws distinctions as compared with two groups of individuals: individuals without protected characteristics who have not suffered discrimination and do not require CHRA damages (“Comparator Group One”), and individuals who receive similar damages awards for human rights violations pursuant to the common law i.e. through means other than the CHRA statutory regime (“Comparator Group Two”) (collectively, the “Comparator Groups”).
The Court rejected this argument, finding that the Plaintiff failed to establish a distinction between claimants who are awarded damages under the CHRA pursuant to the statutory cap and the Comparator Groups.
With respect to Comparator Group One (individuals who have not experienced discrimination and do not require remedies under the CHRA), the Court found that this group is too broad to allow for any meaningful comparison.
With respect to Comparator Group Two (individuals who receive similar damages awards pursuant to the common law), the Plaintiff argued that Canadian law has two tiers of damages: one for individuals with founded discrimination claims under the CHRA, and another for individuals who are successful in bringing human rights claims forward at different tribunals or at court (who are not subject to a statutory monetary cap).
The Court stated that, when evaluating comparator groups, a comparison must be made to others in the “social and political setting in which the question arises”. In this case, individuals who succeed in common law claims are outside of the appropriate social and political setting as established by the jurisprudence, as these are two distinct regimes — statutory law and common law — that apply to different contexts, and there is no support for reaching from one into the other to find a comparator group.
Accordingly, the Court found that the Plaintiff’s claims failed at step 1 of the section 15 test, as the Plaintiff failed to establish that the statutory scheme, on its face or in its impact, creates a distinction based on an enumerated or analogous ground.
The Court also considered whether the Plaintiff’s claim would succeed at step two of the section 15 test (whether the legislation imposes burdens or denies benefits in a manner that has the effect of reinforcing, perpetuating, or exacerbating a disadvantage). The Court found that the Plaintiff’s claim would also fail at step two for two reasons. First, the Court was unable to undertake a proper contextual inquiry grounded in the actual situation of the protected groups as the Plaintiff had framed the claimant group as a collective rather than discerning the various protected groups. Moreover, the Court held that the Plaintiff failed to account for the broader legislative context by not considering the suite of remedies available to a CHRA complainant. For example, in addition to providing damages for pain and suffering or reckless/wilful discriminatory action, the CHRA also provides for a host of remedies, including measures to redress or prevent discrimination in the future (subs. 53(2)(a)); access to the rights, opportunities or privileges that are or were denied (subs. 53(2)(b)); compensation for lost wages and expenses (subs. 53(2)(c)); and compensation for any additional costs of obtaining alternative goods, services, facilities and accommodation, and any expenses (subs. 53(2)(d)). Accordingly, the Plaintiff’s singular focus on the monetary cap is inconsistent with a contextual approach and disregards how these awards factor into the larger remedial picture of the federal regime.
Conclusion
While the Court recognized that the CHRA’s damages cap has remained stagnant for over 25 years and that there have been several calls to either increase or eliminate it altogether, it concluded that this issue is a policy issue, not a constitutional matter, and it would not be appropriate for the Court to comment on the stagnation.
While currently monetary damages under the CHRA continue to be subject to a statutory cap, this case has been appealed to the Federal Court of Appeal, which will hopefully provide additional clarity on the constitutionality of these provisions for the federal regime.
About the author
Samantha Sutherland is a lawyer with Turnpenney Milne and practices exclusively in the area of employment law. In her practice, she represents employers and employees, and regularly conducts workplace investigations.
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