B.C. Human Rights Tribunal Makes Record-Shattering Award for Injury to Dignity
On January 28, 2021, the B.C. Human Rights Tribunal (the “Tribunal”) ordered the Government of British Columbia to pay a total of $974,167 – including a record-shattering $176,000 in compensation for injury to dignity, feelings and self-respect – for discriminating and retaliating against a B.C. Corrections Officer, contrary to sections 13 and 43 of the BC Human Rights Code (the “Code”).
Francis v. BC Ministry of Justice (No. 5), 2021 BCHRT 16 (the “Remedy Decision”), is the latest chapter in a 9-year saga between Levan Francis, a former B.C. Corrections officer, and the BC Ministry of Justice, North Fraser Pre-Trial Centre (“North Fraser”). In 2012, Mr. Francis filed a human rights complaint alleging that his employer, North Fraser, had discriminated against him on the basis of race and colour, contrary to section 13 of the Code. Mr. Francis also alleged that North Fraser had retaliated against him contrary to section 43 of the Code by treating him with hostility after learning that he had filed a human rights complaint.
The scope of Mr. Francis’ complaint covered the 18-month period leading up to his departure from North Fraser in 2013. He alleged that, during that time, his colleagues and supervisors made racist remarks about him, to him and about other coworkers. The impugned incidents included being stereotyped as slow and lazy, having his mistakes treated differently than his colleagues’, being ordered to breach protocol and then being reprimanded for doing so, and being accused of causing problems and playing the “race card” after reporting the incidents and filing a human rights complaint.
In Francis v. BC Ministry of Justice (No.3), 2019 BCHRT 136 (the “Liability Decision”), the Tribunal found that Mr. Francis had been stereotyped, singled out, and subjected to racial comments and slurs. The Tribunal also found that, after reporting the behaviour to management and filing a human rights complaint, Mr. Francis had been regarded as a troublemaker and further targeted by his supervisors. After hearing evidence submitted over the course of nine days, in the form of ten witnesses and over 290 documentary exhibits, the Tribunal concluded that there had been nine instances of discrimination and two instances of retaliation that, together, amounted to a poisoned work environment.
In the Remedy Decision, the Tribunal found that as a result of the discrimination and retaliation, Mr. Francis lost his employment, experienced a deterioration of mental and physical health, experienced financial, social and family losses, and left his workplace because it was poisoned. Furthermore, the Tribunal found that the extensive legal process had contributed to the deterioration of Mr. Francis’ mental health.
Mr. Francis sought $917,030 in compensation for lost wages, including $236,939 for net past income loss, $616,975 for future income loss, and $65,116 for pension loss. These figures were based on the amount he would have earned if he had worked as a corrections officer until the age of 65.
The Tribunal awarded Mr. Francis $761,542 in compensation for lost wages. The Tribunal ordered compensation for past wage loss in the amount of $264,060, which it calculated by taking Mr. Francis’ gross income loss of $293,947,[i] adding a sum for tax liability, deducting a sum for repayment of short-term disability benefits he received, and discounting by 20% for contingencies.[ii] Next, with reference to a retirement age of 63 years and a discount of 20% for contingencies, the Tribunal awarded $431,601 in future income loss and $65,881 for pension loss.
Mr. Francis also sought $220,000 in damages for injury to dignity, feelings and self-respect. Noting that there is no cap on such awards, and that the quantum of such awards lies within its discretion, the Tribunal awarded a record-breaking $176,000 in such damages. The Tribunal awarded this amount based on the nature of the discrimination, the time period and frequency of the discrimination, the vulnerability of Mr. Francis and the impact of the discrimination on him, and the totality of the relationship between the parties. Most importantly, the Tribunal found that the impact of the discrimination and retaliation on Mr. Francis was extreme, taking into account the effect the impugned behaviour had on his employment, mental health, physical health, financial wellbeing, social life, and family life. As such, the Tribunal concluded that $176,000 would sufficiently compensate him for the actual harm he suffered.
Not only is this award roughly $65,000 more than North Fraser submitted would be a fair amount, it is also over $100,000 more than the previous high-water mark for damages for injury to dignity, feelings and self-respect. The now second-largest award for such damages is $75,000, ordered in Kelly v. University of British Columbia (No. 4), 2013 BCHRT 302. This award was set aside as being patently unreasonable by the B.C. Supreme Court in University ofBritish Columbia v. Kelly, 2015 BCSC 1731, but restored on appeal in University of British Columbia v. Kelly, 2016 BCCA 271. Although the standard quantum of awards for injury to dignity, feelings and self-respect has increased over time, there have still only been two awards of $50,000 or more; the majority remain below $10,000.
In addition to compensation for lost wages and injury to dignity, the Tribunal made a declaratory order that North Fraser’s conduct as defined in the Liability Decision is discrimination and retaliation under the Code. It also awarded $1,140 for expenses in relation to Mr. Francis’ counselling and health-related therapy,[iii] and $25,515.24 in disbursements. However, the Tribunal declined Mr. Francis’ application for costs on the basis that the delay in the proceeding was not solely attributable to North Fraser.
Significance for Employers
This decision serves as a reminder that there is no cap on compensation for injury to dignity, feelings and self-respect. Employers should be careful to avoid treating employees who file human rights complaints with any kind of hostility, and should take action to avoid other employees from doing so as well. Even if the employee is perceived by others as sensitive or underperforming, management should take reported incidents seriously and conduct appropriate follow‑up investigations.
As mentioned, the last time the Tribunal made an unusually high award for injury to dignity, feelings and self-respect, the Respondents filed for Judicial Review. The award in that case was overturned and then restored on appeal. We will keep readers apprised of any further proceedings in this case.
If you have any questions about this decision, please contact one of the members of McCarthy Tétrault’s Labour & Employment team.
[i] This number was derived by an economist and based on the assumption that Mr. Francis would have continued to work at his 2012 earning levels.
[ii] Contingencies account for the fact that some of the harm suffered by a Complainant could have occurred regardless of the discrimination: Gichuru v. The Law Society of British Columbia, 2014 BCCA 396 at para. 46.
[iii] In Francis v. Ministry of Justice (No. 4), 2020 BCHRT 160, Mr. Francis sought $25,000 in legal expenses he incurred after filing the human rights complaint. The Tribunal dismissed this application on the basis that it does not have the authority to reimburse for legal expenses incurred after a complaint is filed.
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