G. Morrison v. The Crown in Right of Ontario (Human Rights Commission), 1997 CanLII 10282

P/0037/94, P/0037/95

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

G. Morrison

Grievor

• and -

The Crown in Right of Ontario (Human Rights Commission)

Employer

BEFORE

M. Lynk D. Ellis B.L. Munro

Panel Chair Panel Member Panel Member

FOR THE GRIEVOR

D. Bagambiire Counsel Davies Bagambiire Barrister and Solicitor

FOR THE EMPLOYER

M. Farson Counsel Fraser & Beatty Barristers and Solicitors

HEARING

December 18, 1996.

Interim Decision

This is the fourth written award on an interim matter that the Public Service Grievance Board has issued on this file. The Board has previously issued rulings on motions concerning the production of witness statements (decision dated 21st December 1995), a alleged conflict of interest by legal counsel and the matter of issue estoppel (decision dated 10th September 1996), and the effect of an alleged error by a lower-level grievance proceeding upon the jurisdiction of this Board (decision dated 18th October 1996). The first decision was by a differently-constituted panel; the remainder have been issued by this present panel.

During the course of the resumption of these hearings on 18th December 1996, the issue arose as to whether the Public Service Grievance Board has the jurisdiction to award punitive damages and aggravated damages in the appropriate case. The PSGB issued a letter decision on 31st December 1996, ruling that it did not have the jurisdiction to award punitive damages, but it did have the authority to award aggravated damages, subject to specific conditions. This interim decision provides the reasons for the Board’s ruling.

1. Argument

(i) Mr. Morrison

Counsel for Mr. Morrison brought the preliminary motion that this Board has the authority, in the appropriate case, to award both punitive and aggravated damages.

On behalf of Mr. Morrison, Mr. Bagambiire submitted that the PSGB’s authority to award both categories of damages stems from the 1989 decision by the Supreme Court of Canada in Vorvis v. Insurance Corporation of British Columbia (1989), 1989 CanLII 93 (SCC), 58 D.L.R. (4th) 193. In this case, the Supreme Court ruled that aggravated damages were available in a wrongful dismissal application, where the employer’s acts were independently actionable, and where the employee’s particular injury arose out of the dismissal itself. However, where the employer’s conduct preceded the wrongful dismissal, aggravated damages were not available. As for punitive damages, the Court held that they could only be awarded in the case of an actionable wrong, and, as such, they would only rarely be awarded in an employment contract setting. On the specific facts of the case before it, the Supreme Court declined to award either category of damages. Mr. Bagambiire argued that the significance of Vorvis was that it gave an employment tribunal such as the PSGB the authority to award both aggravated and punitive damages in the appropriate circumstances. The only question then for a tribunal would be whether the evidence before it supported the awarding of either category.

The evidence to come, Mr. Bagambiire submitted, would be sufficient to show that Mr. Morrison suffered damages that fell within both of the category headings, and that these damages constitute an independent cause of action. These damages arose from the employer’s negligence, from its failure to perform its statutory responsibilities, and from its intention to injure the reputation of the grievor.

While Mr. Bagambiire conceded that labour tribunals have not rushed to embrace the direction provided in Vorvis, he pointed to two examples where the availability of damages was endorsed: Re Ontario Hydro (1990), 1990 CanLII 12690 (ON LA), 16 L.A.C. (4th) 264 (Kates); and Whitler Industries (1992), 17 C.L.R.B.R. (2nd) 102 (O.L.R.B.).

As for grounding the PSGB’s statutory authority to award these category of damages, Mr. Bagambiire relied upon sections 30-35 of Regulation 977 of the Public Service Act. While he noted that these provisions were silent on the specific scope of the Board’s jurisdiction, he argued that, in light of Vorvis, the common law on aggravated and punitive damages had been effectively transported into the sphere of the Board’s authority. This, he maintained, was consistent with the general direction of the PSGB to read its authority under the Act in a wide and liberal manner.

(ii) Ontario Human Rights Commission

Ms. Farson, counsel for the Commission, also pointed to Vorvis as the leading judgement on the power to award aggravated and punitive damages. Given the Supreme Court of Canada’s direction that punitive damages may be awarded only in the rarest of cases, and only in respect to an actionable wrong, she submitted that they are clearly beyond the scope of this Board’s jurisdiction to award. She also submitted that the Act contains a comprehensive regulatory scheme, and has no explicit provisions regarding offences or prosecutions. Accordingly, since its schema contemplates only compensation, and not punishment, the legislator’s intent must have been that punitive damages would be beyond the authority of the PSGB to award.

Likewise, the Supreme Court’s ruling that aggravated damages require an actionable wrong to rest upon has given a clear legal direction that this category of damages is also beyond the authority of a statutory employment tribunal such as the Board to grant. Ms. Farson emphasized that Vorvis significantly restricted the circumstances when these damages could be awarded at common law, where the courts deal with employment relationships that have come to an end. Extending this reasoning a step further, she argued that, for a statutory tribunal which has jurisdiction over ongoing employment relationships (under the “working conditions and terms of employment” provisions), the standard for the application of these categories can only be higher and more onerous.

Ms. Farson then referred to two earlier PSGB decisions which considered the question now before us. In Pigeau and the Ministry of Transportation and Communications (705/73), the grievor had claimed damages for mental anguish suffered as a result of his dismissal. The Board had upheld the grievor’s complaint against his dismissal, but demurred on the issue of damages. On page 8, the Board stated that it:

…seriously doubts that it has the power to award damages of the type requested. Even if it had such power it would not be inclined to exercise it in the present case.

In A Grievor and the Ministry of Health (P/14/90), a grievor also requested punitive damages in the aftermath of a successful grievance against the employer’s actions. Panel Chair Springate held, on page 21 that the PSGB did not have the power to award punitive damages:

Regulation 881 can reasonably be interpreted as enabling the Board to make remedial orders designed to correct the results of inappropriate conduct on the part of the employer. The regulation cannot, however, be interpreted as giving the Board the authority to punish the employer. Accordingly, this aspect of the grievor’s claim is dismissed.

Turning to the two tribunal decisions cited by Mr. Bagambiire, Ms. Farson maintained that neither should be closely followed. Re Ontario Hydro did not provide a persuasive discussion as to whether an arbitration board could apply Vorvis. In any event, Re Ontario Hydro dealt with the issue in a collective agreement context, an important distinction from our present circumstances. Whitler Industries, she argued, was wrongly decided by the Ontario Labour Relations Board because it relied upon rulings decided under the Ontario Human Rights Code; the Occupational Health and Safety Act does not contain a specific provision - such as Section 41(1)(b) of the Code - that would allow it to award aggravated damages.

In summing up, Ms. Farson submitted that punitive damages are clearly beyond the jurisdiction of this Board to award, relying upon A Grievor and the schema of the Public Service Act. She conceded that the question of aggravated damages is somewhat less clear, but the scope of Vorvis and its highly doubtful application to a continuing employment setting such as here are sufficiently persuasive indices that this is not an appropriate statutory setting to apply this category of damages.

(iii) Mr. Morrison in reply

Mr. Bagambiire made three arguments by way of reply. First, he maintained that the distinction drawn by counsel for the Commission between a dismissal and a working conditions grievance was artificial. There is no legal grounding, and no industrial relations policy, to support the denial of aggravated and punitive damages in the circumstances of a continuing employment relationship. Second, the absence of a specific reference in the Public Service Act to employment offenses does not deprive the PSGB of the power to award either category of damages. Related to this, neither Pigeau or A Grievor discuss the application of the two damage categories in detail, and are therefore not useful precedents to rely upon. Third, the jurisdiction of the PSGB has never been narrowly restricted to the explicit provisions in the Act or its regulations. Otherwise, such issues as the authority to award interest or costs in the appropriate situations would never have evolved. It is entitled to read its jurisdictional scope from the ongoing changes in the common law, including Vorvis.

2. Judgement

(i) Punitive Damages

The purpose of punitive damages in the common law is to punish the particularly vile or blameworthy conduct of the defendant. There is nothing compensatory at all about this category of damages. Rather, punitive damages are intended to express legal condemnation, principally through monetary retribution, in order to deter the defendant and others who may be tempted to follow in her or his footsteps, from behaving in the same fashion again. As the Supreme Court of Canada noted in Vorvis they constitute an exception to the general common law rule that damages are designed to compensate the injured, not to punish the wrongdoer. In his majority judgement, McIntyre J. stated on p. 206 and 208 that punitive damages would be awarded only in rare circumstances:

It must never be forgotten that when awarded by a judge or a jury, a punishment is imposed upon a person by a court by the operation of the judicial process. What is it that is punished? It surely cannot be merely conduct of which the court disapproves, however strongly the judge may feel. Punishment may not be imposed in a civilized community without a justification in law. The only basis for the imposition of such punishment must be a finding of the commission of an actionable wrong which caused the injury complained of by the plaintiff…

….punitive damages may only be awarded in respect of conduct which is of such nature as to be deserving of punishment because of its harsh, vindictive, reprehensible and malicious nature...the conduct must be extreme in its nature and such that by any reasonable standard it is deserving of full condemnation and punishment.

The guiding theme of remedial awards in Canadian labour relations law is that they are designed to be compensatory, not punitive, in nature: Radio Shack, [1979] O.L.R.B. Rep. 1220, app'l for jud. rev. dis'd 1980 CanLII 1738 (ON HCJ), 30 O.R. (2d) 29 (Div. Ct.). Unlike the common law courts, labour board tribunals derive their jurisdiction from statute, and are rightly cautious about qualitatively expanding the scope of their remedial jurisdiction without some direction from the legislators. On the few occasions that labour boards have been presented with the argument to award punitive damages, they have almost always demurred. As Ms. Farson has pointed out, this Board has twice in the past expressed doubt, without providing detailed reasoning or a final judgement, about its authority to grant such a category of award: Pigeau and A Grievor. The Ontario Labour Relations Board, in Gerald Lecuyer, [1985] O.L.R.B. Rep. 1099, ruled that it did not have the authority to grant punitive damages, because they went beyond the compensatory nature of labour relations remedies. The leading text on labour board remedies, Labour Relations Board Remedies in Canada, R. Kerr, D. Wright & J. Raso (Aurora, Canada Law Book, 1993), agrees with this trend, on page 9-35 :

A board is unlikely to award compensation in the nature of punitive damages. The view is that penalties for violation of the legislation should be dealt with by prosecution, rather than by board remedies.

The one labour tribunal decision presented to us that accepted an authority to award punitive damages was Re Ontario Hydro (supra). In this award, Arbitrator Kates read Vorvis to mean that the jurisdiction was now available to a board of labour arbitration under a collective agreement to award punitive damages in appropriate circumstances, provided that the Vorvis pre-requisites have been satisfied. However, he noted on p. 271 that, while the Supreme Court of Canada in Vorvis removed some past obstacles for the awarding of punitive damages, it had erected new restrictions that might well "...render the exercise of such arbitral authority of dubious efficacy." We were not provided with any arbitration caselaw where the direction suggested in Re Ontario Hydro was accepted and applied.

Without making a detailed analysis of the interpretation in Re Ontario Hydro on the import of the Vorvis principles on punitive damages to statutory labour tribunals, it is our judgement that we have not been persuaded by anything we have read in Re Ontario Hydro that the prevailing labour and employment law view towards the jurisdiction of a board such as ours to order such damages has been fundamentally altered. On the contrary, we agree with the direction provided in the cases and comments we have cited on the previous page. For this Board, an award that has a punitive character should have no place at the present time in our remedial quiver. It would be contrary to the thrust of remedial principles that both the PSGB, and labour tribunals elsewhere in Ontario and Canada, have regularly followed. We accept the oft-cited rationale that adopting punitive awards would be seriously detrimental to the well-being of the ongoing relationship between the parties where it is governed by a statutory framework. We acknowledge that the common law, through Vorvis, has permitted its application, and tribunals such as ours should always be alert to the ongoing evolution in the judiciary’s development of employment law. But, until either labour and employment legislation is specifically amended to include this qualitatively new direction, or the thinking among labour and employment tribunals in Ontario and Canada undergoes a sea-change in its policy towards the place of punitive damages in industrial and human relations, we decline to adopt this category of damages.

(ii) Aggravated Damages

Aggravated damages are also a category of extraordinary or non-pecuniary damages, but they are distinguishable from punitive damages by their compensatory nature. They may be awarded to cover conduct that could also be the subject of punitive damages, but their particular attention is towards compensating those intangible injuries such as mental distress and humiliation that arise from the defendant’s objectionable and insulting behaviour. In the words of a leading textbook on damages in Canada:

Their purpose is to soothe a plaintiff whose feelings have been wounded by the quality of the defendant’s misbehaviour. They are especially applicable where feelings are wounded by the defendant’s manner and state of mind. In essence, aggravated damages comprise a balm for mental distress - a solatium for such feelings as humiliation, indignation, outrage, and fear of repetition.

K.D. Cooper-Stephenson and I.B. Saunders, Personal Injury Damages in Canada (Toronto, Carswell, 1981), at p. 55.

The British Columbia Supreme Court, in Robitaille v. Vancouver Hockey Club Ltd. (1979), 19 B.C.L.R. 158, wrote on p. 183 that the objective of aggravated damages is to provide the complainant with:

...extra compensation…for the injury to his feelings and dignity, particularly where the injury to him has been increased by the manner of doing the injury.

Because their character is compensatory rather than punitive, aggravated damages have been accepted on occasion as an appropriate remedial heading within the jurisdiction of labour tribunals in Canada. The leading case is the 1992 decision of the Ontario Labour Relations Board in Whitler Industries (supra). In this case, an employee lost part of a finger at work, and, as a consequence, suffered nightmares, frequent headaches and stress. He was subsequently terminated by his employer. The complainant then sought remedies against his employer under the Occupational Health and Safety Act. The Board first considered whether it had the jurisdiction to grant damages for mental distress. On p. 106-7, it wrote:

...the Board to date has not awarded damages specifically for mental distress, not because it lacks jurisdiction to do so, but because cases where they have been claimed to date have not involved circumstances in which the Board found it appropriate to do so. In K-Mart, it had awarded damages for assault on the complainant’s dignity, a closely related concept, but the order was later withdrawn. In each case, the object is to return the complainant as nearly as possible to the situation he or she would have been in if the statute had not been breached, insofar as that is possible, either by way of monetary redress or other remedies. The goal is to make the complainant whole, avoiding under or over-compensation. Although the conduct of the respondent is relevant in assessing the probable impact of the complainant. and therefore the likelihood of loss, the Board’s remedial power is only compensatory. It is not punishment for the respondent’s behaviour. The focus must be on what loss the complainant suffered and how it may be remedied.

The OLRB in Whitler Industries went on to state, on p. 109, that, in considering the issue of damages for mental distress, the questions to be asked would not differ substantially from those in any other area of damages:

Was there a loss due to mental distress caused by the breach of the statute? This will involve deciding whether the evidence supports a finding that the impact on the individual is identifiable mental distress, i.e., negative stress going significantly beyond the normal stress of life and work with its inevitable frustrations, personality conflicts and difficulties of all sorts. If there is a mental distress loss, what remedy can best put the complainant in the position he or she would have been if the statute had not been breached? What complicates the issue of damages for mental distress is that the loss, and by resulting necessity the effect of the remedy, are intangible, and less readily determinable, both in terms of fact finding and in terms of choosing what remedial direction is necessary to, as far as possible, undo the damage done to the complainant. The question of how extensive the mental distress is can appropriately be dealt with at the stage of choosing what remedy, including what quantum, if any, of damages should be awarded. The Board must also consider whether the damages claimed are too remote in the chain of causation to be recognized.

The courts have made clear in general that the onus is on the complainant to prove claimed damages when disputed, and that awards of damages without evidence and the chance for the party opposite to challenge mitigation may be suspect…Accordingly, when claiming damages for mental distress, a complainant may well make relevant much of his or her personal and mental health history which would otherwise be irrelevant to the hearing of a complaint such as this…

In the end, the Ontario Board in Whitley Industries found that the complainant had suffered mental distress as a consequence of the abrupt, unlawful discharge, which had closely followed the workplace accident to the complainant’s finger. It awarded the complainant $500 as damages for mental distress. (Also see Jacmorr Manufacturing Ltd. (1987), 17 C.L.R.B.R. (N.S.) 398 (Ont.))

The other important decision to review is Re Ontario Hydro (supra). In this decision, Arbitrator Kates held that Vorvis has provided the remedial jurisdiction to arbitrators to award aggravated damages, provided that the conditions necessary for their application have been satisfied as per the Supreme Court of Canada’s ruling. We have not adopted Arbitrator Kates’ views on the applicability of punitive damages, but we find his comments on aggravated damages to be both more persuasive and more in line with the direction of labour boards on the scope of their remedial powers. In its review of Vorvis and its application to a collective agreement context, the arbitration board chaired by Arbitrator Kates offered on p. 274 a useful discussion as to when a claim for aggravated damages would be warranted:

... we appreciate the S.C.C. [in Vorvis] to indicate that it is not the mental suffering visited upon the victim of an employer’s failure to establish just cause for discharge that would warrant in an appropriate circumstances a claim for aggravated or punitive damages…What is the important and overriding condition to awarding such extraordinary relief is whether the employer failed to follow the procedures prescribed in the collective agreement in effecting the discharge or compounded the mistaken decision to discharge by violating another substantive provision of the collective agreement that would warrant, apart from the just cause provision, a separate grievance complaint...In other words where the employer either could have avoided or alleviated the victim’s mental suffering or has aggravated the suffering that has already been inflicted as a result of its omission to adhere to the collective agreement then the employer may very well be vulnerable to a claim for extraordinary relief.

This Board has considered whether it has the jurisdiction to award aggravated damages on at least one prior occasion. In A Grievor (supra), panel Chair Springate was asked to make an award of compensation for the employer’s alleged high-handed conduct which purportedly resulted in the grievor’s humiliation and embarrassment. On p. 22, the panel stated that they could make no definitive ruling on the issue:

In the absence of a provision such as that contained in the Human Rights Code which expressly allows a board of inquiry to make an award for mental anguish, there is an issue as to whether the Board has the jurisdiction to direct that a grievor be compensated for humiliation or embarrassment. We are not, however, aware of any Board decision in which the issue was specifically addressed. Accordingly, we believe that it would not be appropriate to dismiss this aspect of the grievor’s claim at this stage of the proceedings. We will instead reserve on the issue until we have heard the full evidence and representations of the parties.

In its final decision in A Grievor (8th September 1995), the particular findings and conclusion of the Springate panel did not require it to consider whether aggravated damages could be awarded by the PSGB.

We now turn to the question before us: does the Public Service Grievance Board have the jurisdiction to award, in appropriate circumstances, aggravated damages? To answer this, we first note and adopt mutatis mutandis the comments that the Ontario Labour Relations Board made with respect to remedial powers of administrative tribunals in Radio Shack, supra:

It is trite to say that all rights acquire substance only insofar as they are backed by effective remedies. Labour law presents no exception to this proposition. An administrative tribunal with a substantial volume of litigation before it faces a great temptation to develop “boiler plate” remedies which are easy to apply and administer in all cases. This temptation must be resisted if effective remedies are to buttress important statutory rights. An important strength of administrative tribunals is their sensitivity to the real forces at play beneath the legal issues brought before them and there is no greater challenge to the application of this expertise than in the area of developing remedies. To be effective, remedies should be equitable, they should take account of the economics and psychology permeating the situation; and they should attempt to take into account the reasons for the statutory violation.

On judicial review, the Ontario Divisional Court 1980 CanLII 1738 (ON HCJ), 30 O.R. (2d) 29 dismissed an application brought to quash the Board’s remedial order. Cory J. (as he then was) stated on p. 47 that:

So long as the award of the Board is compensatory and not punitive; so long as it flows from the scope, intent and provision of the act itself, then the award of damages is within the jurisdiction of the Board. The mere fact that the award of damages is novel, that the remedy is innovative, should not be a reason for finding it unreasonable.

To determine whether the PSGB has the jurisdiction to award aggravated damages, we must ask whether such a remedy flows from the scope, intent and provisions of the Public Service Act and its applicable regulations. We note, first, that the authority to award aggravated damages is not explicitly stated in the legislation. While the absence of an explicit provision does not provide a green light for a statutory board such as ours to proceed to fashion remedies and powers as it sees fit, neither is it an automatic red light to limiting the scope of its jurisdiction. It is accepted in Canadian labour law that a statutory board may award compensation or reimbursement for losses under their general rectification powers in circumstances where compensation has not been expressly provided for in the home legislation: Tri-County Contracting, [ 1991] O.L.R.B. Rep. (Dec) 1416; Ritrovato (1986), 16 C.L.R.B.R. (N.S.) 29 (O.L.R.B.); Bank of Montreal (1985), 10 C.L.R.B.R. (N.S.) 129 (C.L.R.B.); Westinghouse Canada Ltd., [1980] 2 Can. L.R.B.R. 469 (O.L.R.B.), uph'd (1980), 80 C.L.L.C. 14,062 (Ont. Div. Ct.).

We are satisfied that the jurisdiction to award aggravated damages lies within the scope and intent of the Act and its regulations. One of the purposes of the legislation is to redress the inherent imbalance in power that lies between an employer and an individual employee - in this case, between the Queen in Right of Ontario and its civil servants who perform particular managerial duties - by providing certain statutory employment rights as well as a grievance procedure where differences over disciplinary matters or working condition and terms of employment issues can be adjudicated through an internal process, culminating in a neutral arbitration hearing: see generally the remarks of Chief Justice Dickson in Slaight Communications Inc. v. Davidson (1989), 1989 CanLII 92 (SCC), 59 D.L.R. (4th) 416 (S.C.C.), at pp. 423-427. Accordingly, for the reasons expressed in Whitler Industries, Re Ontario Hydro and Radio Shack, we find not only that the capacity to make an award of aggravated damages would be in harmony with the compensatory nature of employment and labour law remedies in Canada, but also that the ability to award such a remedy in the appropriate circumstances is entirely compatible with the modem view in both law and human resource management that work is central to an individual’s sense of citizenship and psychological well-being. To cite Chief Justice Dickson once again, this time from his opinion in Reference Re Public Service Employee Relations Act (Alta) (1987), 1987 CanLII 88 (SCC), 38 D.L.R. (4th) 161, at p. 199: “Work is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his or her sense of identity, self-worth and emotional well-being.’’ Iacobucci J., in Machtinger v. HOJ Industries Ltd. (1992), 92 C.L.L.C. 14,022 (S.C.C.), after citing this paragraph in approval, added that: “not only is work fundamental to an individual’s identity, but also that the manner in which employment can be terminated is equally important.” Thus, in our view, the authority of a statutory employment tribunal to be able to award aggravated damages to an employee in order to compensate for harm done to his or her mental and psychological health in the course of employment, and particularly in the termination stage, is an important feature for realizing the scope and intent of legislation such as the Public Service Act.

As well, we are also satisfied that the authority to award aggravated damages lies within the provisions of the Public Service Act. We note that Regulation 977 (as amended) - the portion of the Act that deals with the Board - is sparse with its delination of the Board’s remedial powers. Indeed, the only powers of the Board explicitly stated in the Regulation are procedural: see sections 30-35, 41-42,47-50 and 52-55. However, without the authority being specifically expressed, the Board as a matter of substantive practice has for a long time assumed the remedial power to reinstate a grievor, reduce a disciplinary suspension, award interest, and fashion other such awards as it deemed appropriate in the particular circumstances. It exercised these implied remedial powers in order to satisfy several of the purposes of the legislation: among them, the redress of the inequality of bargaining power between employer and employee, and the provision of employment rights for certain managerial employees in the provincial public service. These powers that the Board has implied for itself are in line with the conventional remedial powers exercised by other employment and labour tribunals in Canada. Indeed, if the Board had not assumed that these types of compensatory remedial powers could be implied as falling within its jurisdiction, then its authority and its very meaning would be nugatory. It would be reduced to a mere academic talking shop, devoid of any ability to remedy the grievances coming before it. Fortunately, the legislature did not intend the Board to be a sterile talking shop, and the industrial relations community that the Board has served for the past several decades has always expected it to act with real authority to effect the reasons for its decisions and the purpose for its existence.

We view the ability of this Board to award aggravated damages in the appropriate circumstances as entirely consistent with the other remedies it has assumed over the years of its jurisprudential development. Given that the schema of aggravated damages lies within the compensatory approach to remedies awarded by labour and employment tribunals such as the Board, and certainly would not mark the kind of qualitative leap that the assumption of the jurisdiction to award punitive damages would signify, we are satisfied that this remedy flows naturally from the provisions of the Act and its regulations. We also believe that this reading of the Act is entirely consistent with the liberal interpretation to be given to social and remedial legislation such as employment statutes: see the comments of Iacobucci J. in Machtinger (supra).

Having said that, we do not believe that the Board’s authority to award aggravated damages should be entirely open-ended. Accordingly, we would offer the following as a non-exhaustive direction as to how this Board will apply this remedy:

(i) The remedial powers of the Board are to make a grievor whole, when warranted. It must not under-compensate or over-compensate the grievor. The damages it will award are compensatory only, and not punitive.

(ii) Aggravated damages are an extraordinary form of relief. They are to be awarded only when other available remedies would inadequately compensate the grievor.

(iii) Aggravated damages are to be awarded for mental distress suffered by the grievor according to the general principles established in the common law. These general principles may be subsequently refined in the specific context of the Board’s practice.

(iv) The onus for establishing the evidentiary basis for the claim of aggravated damages rests with the grievor.

3. Conclusion

For the reasons expressed above, we rule that punitive damages lie beyond the authority of the Public Service Grievance Board to award. We also rule that aggravated damages lie within the remedial jurisdiction of this Board, subject to the non-exhaustive list of conditions stated hereto.

We will await argument from the parties at the conclusion of the proceedings on this grievance as to whether this is an appropriate occasion to award aggravated damages.

Our appreciation to both counsel for well-presented arguments.

Dated the 22 day of August, 1997 at Toronto, Ontario.