Remedies in Human Rights Claims
It is often said that there are no rights unless there is a remedy for the breach of that right. In British Columbia, the BC Human Rights Code sets out rights of individuals to be protected from discrimination in a variety of different settings, including employment, housing, and services generally available to the public.
Discrimination occurs when an individual suffers an adverse consequence that is related to a protected characteristic (e.g., race, gender, disability, religion, or family status). Most people are capable of identifying at least on a superficial level whether they have suffered discrimination. However, people have trouble identifying are the available remedies under the Human Rights Code for discrimination. In this blog post, we hope to identify some of the common remedies sought from the British Columbia Human Rights Tribunal.
Section 37 of the Human Rights Code sets out the remedies available to individuals. The available remedies are:
- An order that the person that contravened this Code (i.e., they committed discrimination) to cease the contravention and to refrain from committing the same or a similar contravention.
- A declaratory order that the conduct complained of, or similar conduct, is discrimination contrary to this Code.
- Compensate the person discriminated against for all or part of any lost wages or salary or expenses incurred as a result of the contravention.
- Compensate the person discriminated against an amount that the Tribunal considers appropriate to compensate that person for injury to dignity, feelings and self respect or to any of them.
In this blog post written by Dana G. Quantz we wish to address three common types of remedies: wage loss, expenses, and injury to dignity.
The purpose of wage loss awards under the Human Rights Code is to put the complainant in the position they would have been in, had the discrimination not occurred.
Tribunal Member Devyn Cousineau recently wrote in Benton v Richmond Plastics, 2020 BCHRT 82, explaining the purpose of wage loss under the Human Rights Code is to fully compensate the complainant for income lost solely as a result of the discrimination (paragraph 82).
This award is different from the calculation of reasonable notice under a wrongful dismissal claim because it is not correlated to the length of a person’s employment at any particular employer. In Benton, the Tribunal awarded that complainant 12 months wages after being fired on her first day of work for discriminatory reasons.
In determining what lost wages any complainant is entitled to the Tribunal does also consider whether the employment would have likely not continued even had there been no discrimination and efforts to mitigate losses (i.e., efforts to find alternative work after the discrimination occurred). However, the onus of proof is on the employer to prove an non-discriminatory reason for the employment to have ended and a failure to mitigate as means of reducing any wage loss claim (see e.g. Su v. Coniston Products (No. 2), 2011 BCHRT 223 at para. 62, and Morris v. B.C. Rail, 2003 BCHRT 14 at paras. 247- 248).
At Hutchison Oss-Cech Marlatt, we have extensive experience evaluating and prosecuting claims before the BC Human Rights Tribunal. If you have lost wages due to discrimination, then give us a call.
The types of expenses available under the Human Rights Code are broad. They can include any expense that arises because of the discrimination. We have made claims expenses regarding housing, insurance, medical bills, moving expenses, and other expenses that have resulted from discrimination.
However, a common question concerns whether legal fees and expenses are available. Legal fees are expenses that can be claimed but only up to the filing of the complaint with the BC Human Rights Tribunal. After the complaint is filed with the Tribunal, there is no ability to claim legal fees (i.e., the time charged by a lawyer for work done on the file) but expenses incurred such as expert reports or clinical records can be compensated on a case by case basis (see e.g., Fraser v BC Ministry of Forests, Lands and Natural Resource Operations (No. 6), 2019 BCHRT 195).
If you have suffered expenses due to discrimination, then feel free to contact us for a consultation.
Injury to Dignity, Feelings, and Self Respect
The last type of remedy we are discussing in this blog post is compensation for injury to dignity, feelings, and self respect. The purpose of these awards is compensatory as opposed to punitive. That means the purpose of this award is to compensate the person discriminated against for the harm that occurred to them instead of focusing on punishing the people who discriminated against them.
The Tribunal generally considers three broad factors in evaluating what level of compensation is warranted:
- The nature of the discrimination: i.e., what occurred and led to the finding of discrimination.
- The complainant’s vulnerability: i.e., how vulnerable was the complainant compared to the individual found to have acted discriminatory.
- The effect on the complainant: i.e., what mental, social, and personal impact did the discrimination have on the complainant.
These types of awards have traditionally been quite conservative but the Tribunal has noted in several decisions that the trend for these awards is upward to ensure that compensation matches the social expectations of findings of discrimination (see e.g., Araniva v RSY Contracting and another (No. 3), 2019 BCHRT 97). In Biggins obo Walsh v Pink and others, 2018 BCHRT 174, Tribunal Member Devyn Cousneau awarded $35,000 for discrimination that previously would have been awarded $15,000 only a few years ago. The Tribunal noted that:
 … The trend in damages for injury to dignity is upwards, and since 2012, the Tribunal has made awards of up to $75,000 (upheld in Kelly BCCA); $50,000 (PN v. FR, 2015 BCHRT 60); $35,000 (Davis v. Sandringham Care Centre and another, 2015 BCHRT 148; Brar v. BCMA, 2015 BCHRT 151); and $30,000 (Wells v. Langley Senior Resources Society, 2018 BCHRT 59). While most of the Tribunal’s high awards have arisen in connection with employment discrimination, in my view there is no principled reason to suggest that the awards should be higher or lower depending on the area of discrimination. Just as work is fundamental to a person’s dignity, so is their housing.
Some other notable decisions include:
- Senyk v WFG Agency Network, 2008 BCHRT 376: Individual with ongoing mental health condition is made worse by harassment of employer, leading of leave of absence and ultimate dismissal by employer. The injury to dignity awarded is $35,000 in 2008.
- Kalyn v VIHA, 2008 BCHRT 377: Female in a male dominated area where she was viewed as a trouble maker for simply seeking respect in the workplace. Employer relied upon gossip and disciplined complainant in a manner dissimilar to others in the workplace. Complaint is found valid and $20,000 is awarded in 2008.
- Benton v Richmond Plastics, 2020 BCHRT 82: Employee discloses that she has a mental health disorder on her first day of work and is fired on the same day. Impact upon employee was significant and resulted in a depression. However, no expert evidence was offered in support. Tribunal awarded $30,000 for injury to dignity.
- Araniva v RSY Contracting and Another (No. 3), 2019 BCHRT 97: Administrative assistant of principal of the respondent company. On two occasions, the principal made sexual advances towards her and on a third occasion he left underwear on her desk. Complainant rejected the advances and as a result had her hours cut and quit her job. Wages were paid for the entire time out of work and $40,000 was awarded for injury to dignity.
If you have suffered significant discrimination under the Code, there are significant financial remedies available to you.
Hutchison Oss-Cech Marlatt has a team of experienced litigators with years of experience before the BC Human Rights Tribunal. We can give you advice and help you prosecute your claims. An initial consultation is without commitment. Give us a call at 250-360-2500!