Awards of General Damages in New Brunswick Labour Arbitration Have Risen
Several recent decisions from labour arbitrators in New Brunswick have shown that, when employees suffer discrimination, mental distress and other intangible harms because of an employer’s breach of their contractual or statutory rights, those employees can, in the right circumstances, receive awards of general damages that are considerably higher than was previously thought to be the norm.
General Damages in Brief
In contrast to special damages, which are effectively reimbursements for specific, calculable losses, general damages aim to compensate a wronged party for intangible losses that cannot be precisely quantified. They can be awarded to employees when an employer’s breach of an employment contract or a collective agreement has caused foreseeable psychological harm (damages for mental distress), or when the employer’s conduct in breaching the agreement has added to the harm caused by the breach itself (aggravated damages). They can also be awarded under the Human Rights Act, RSNB 2011, c. 171, to remedy mental distress or moral injury caused by discrimination on a prohibited ground.
Recent Decisions Show and Upward Trend in Awards
As recently as 2021, a New Brunswick arbitrator could review the caselaw and quite reasonably conclude that the range for damages for mental distress caused by discrimination was from $2,000 to $5,000. (Fédération des enseignants du Nouveau-Brunswick (Charles-Édouard Rousselle) c. Nouveau-Brunswick (Éducation et du Développement de la Petite Enfance), 2021 CanLII 2445 (NB LA), at par. 139) Several decisions from 2024, however, resulted in much higher awards, including the following :
- In New Brunswick Nurses Union and Poirier v. Treasury Board, 2024 CanLII 64164, arbitrator Michel Doucet awarded general damages of $40,000 to an injured nurse who was terminated in breach of the procedural duty to accommodate. (See also the similar damages award in Syndicat des infirmières et infirmiers du Nouveau-Brunswick c Conseil du Trésor, 2024 CanLII 101957)
- In Syndicat des infirmières et infirmiers du Nouveau-Brunswick c. Le Conseil de Gestion, 2024 CanLII 22615 (merits decision—remedy decision as yet unreported), arbitrator Lynne Poirier awarded $40,000 in general damages for discrimination on the ground of disability and $50,000 in aggravated damages for the foreseeable mental distress caused by the breach.
- In New Brunswick Teachers’ Federation v New Brunswick (Education), 2024 CanLII 124417, arbitrator Trisha Perry made awards of $30,000 for mental distress to each of two teachers who experienced serious and prolonged violence in their workplace, along with awards of $5,000 and $15,000 in aggravated damages because their employer had blamed them for the violence of which they were victims.
The Catalyst for Change
The catalyst for the change in the levels of general damages awards was the much-publicized decision in Dornan v. New Brunswick (Health), 2023 CanLII 10433, in which (among other remedies amounting to nearly two million dollars) an adjudicator under the Public Service Labour Relations Act awarded the unheard-of sum of $200,000 in aggravated damages.
Dr. Dornan, who at the time was the CEO of New Brunswick’s English-language health authority, was fired immediately after a patient died while waiting for care in the emergency room of a Fredericton hospital. The termination took place at the direction of then-Premier Blaine Higgs, who went on to announce Dr. Dornan’s removal at a news conference relating to the patient’s death. The adjudicator found that, in addition to breaching his employment contract by firing him without cause, the Province aggravated the harm it caused to Dr. Dornan by leading the public to believe that he was responsible for the patient’s death. The arbitrator’s award was sustained on judicial review.
Since that decision, arbitrators have accepted that workers who enjoy less prestige and visibility than Dr. Dornan should also receive meaningful compensation for intangible harms. They have also shown an increased willingness to consider Ontario decisions in arriving at their assessments of damages, recognizing that the interests which general damages are meant to vindicate are of equal value to a New Brunswicker and to an Ontarian. Finally, the increased awards are a tacit but realistic acknowledgement of the fact that awards from the beginning of the century are now a poor guide to the assessment of damages in today’s dollars.
Benefits of Increased General Damages Awards
The recent increase in awards of general damages is a welcome development, not only from the perspective of employees and their unions, but also from the perspective of broader public policy. Low awards of general damages created the risk that employers might treat them as a cost of doing business, especially in cases where specific monetary losses might be hard to prove. Higher awards of general damages serve to acknowledge the real, though intangible, harms that workers can suffer when their statutory and contractual rights are not respected, while also serving to strengthen the incentive for employers to abide by their legal obligations.
