The Canadian Human Rights Tribunal has ruled that a complainant cannot receive two separate damage awards for the same instance of workplace sexual harassment — one from the employee who committed the harassment and another from their employer — under the Canadian Human Rights Act (CHRA).
The tribunal held that United Parcel Service Canada Ltd. (UPS) cannot be ordered to pay additional general or special damages for sexual harassment, separate from the award it may be liable for as the employer of L.G., an employee previously found to have harassed the complainant, T.P.
“The CHRA does not grant the Tribunal the authority to make two separate awards of general damages for sexual harassment, one against the harassing employee and another against their respondent employer,” the tribunal ruled. “Double recovery of damages unjustly enriches a complainant and is not legally permissible.”
One discriminatory act, not two
The complainant, T.P., had asked the tribunal to issue two separate damage awards under sections 53(2)(e) and 53(3) of the CHRA — one against L.G. and another against UPS — arguing the company’s failure to prevent or address the harassment constituted an additional discriminatory act. She sought $100,000 in general damages and $100,000 in special damages from UPS for five alleged failures under section 65(2) of the CHRA, including failure to investigate, train, or maintain a harassment-free workplace.
The tribunal found that while T.P. experienced one act of sexual harassment by L.G., and UPS failed to prevent or mitigate that conduct, the CHRA does not permit two separate awards for the same injury.
Under section 65(1) of the CHRA, UPS is deemed to have committed the same discriminatory act as L.G. because it failed to meet the statutory defence criteria outlined in section 65(2). That section allows an employer to avoid liability for an employee’s discriminatory acts only if it can show it did not consent to, and took all reasonable steps to prevent and mitigate, the conduct.
UPS failed to meet those conditions. But the tribunal emphasized that failure to meet the section 65(2) defence criteria does not, by itself, create a new or distinct discriminatory practice that would warrant an additional damages award.
“Section 65(2) does not provide the statutory authority to the Tribunal to find that UPS engaged in the discriminatory practice of sexual harassment for its own acts and omissions,” the ruling said.
Legal framework restricts additional awards
The tribunal relied heavily on statutory interpretation and Supreme Court guidance. It emphasized that damages under sections 53(2)(e) (general damages) and 53(3) (special damages) must be connected to “a person found to have engaged in the discriminatory practice.” In this case, that person was L.G., and under section 65(1), UPS is deemed to have engaged in the same conduct.
The tribunal concluded that while UPS can be held liable for the damages arising from L.G.’s harassment, there is no authority under the CHRA to also impose a second set of damages for the employer’s own conduct surrounding the incident.
“Two awards of damages for the same harm or injury would… constitute a double recovery of damages,” the tribunal said. “The employer and harasser are not legally separate respondents once the Tribunal determines that section 65(1) applies.”
Additionally, the tribunal rejected the argument that UPS’s failure to prevent or address the harassment amounted to an independent act of sexual harassment under section 14 of the CHRA. It ruled that the employer’s conduct, while deficient, did not meet the legal test for sexual harassment as set out in case law: namely, “unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences.”
The tribunal stated:
“An employer’s failure to have a policy or training or to investigate is directly relevant to the statutory defence in section 65(2)… [but] is not itself sexual harassment as defined in the case law.”
Prior tribunal rulings not binding
The ruling acknowledged that in some previous cases, the tribunal had issued separate damages awards against both a harasser and their employer. However, it found those decisions were not persuasive here, as they lacked detailed statutory interpretation and often relied on Ontario human rights law, which differs materially from the CHRA.
The tribunal distinguished those precedents by emphasizing that the CHRA does not contain the same statutory rights to a harassment-free workplace found in the Ontario Human Rights Code, which allows separate liability for employers who fail to maintain such environments.
“Under the CHRA, it is not a ‘discriminatory practice’ for an employer to fail to not consent to harassment, to fail to take sufficient steps to prevent and to fail to mitigate sexual harassment in the workplace,” it wrote.
Special damages also limited to one award
The tribunal also ruled that only one award of special damages could be issued under section 53(3) of the CHRA. Even if UPS’s failures were reckless or wilful, a second award could not be issued for conduct that did not itself constitute a separate discriminatory practice.
It held that: “Section 53(3) does not authorize the Tribunal to make an award of special damages for conduct by the employer that has not [been] determined to be a discriminatory practice.”
Any wilful or reckless conduct by UPS may be considered relevant in assessing damages for the single established discriminatory act—L.G.’s harassment—but cannot serve as the basis for a second, separate award.
Tribunal emphasizes legislative limits
In its conclusion, the tribunal reiterated that while UPS failed in its responsibilities, its conduct does not meet the CHRA’s definition of a separate discriminatory practice for which damages can be awarded. Employers who fail to act may still be liable under section 65(1), but this liability cannot be used to generate a second damages award.
“UPS’s acts and omissions were not reasonable, appropriate or fair,” the tribunal concluded, “but the CHRA does not provide for separate awards of general and special damages based on such conduct, where the underlying discriminatory practice was that of the employee.”
The tribunal will issue a separate decision determining how damages should be apportioned between UPS and L.G.
For more information, see Peters v. United Parcel Service Canada Ltd. and Gordon, 2025 CHRT 7 (CanLII).
