Sometimes bad facts make bad law. The BC Human Rights Code
("Code") provides that if the Tribunal finds
discrimination under the Code it can order a variety of remedies
under section 37 including under section 37(2)(d) (iii) ordering
the respondent to:
(iii)pay to the person discriminated
against an amount that the member or panel considers appropriate to
compensate that person for injury to dignity, feelings and
self respect or to any of them. (Emphasis added)
An order for such damages is particularly worthwhile for a
complainant as the award is generally not taxable versus an award
for lost wages.
But such awards are very hard to estimate in advance of an
actual award. As one judge said in another context it is somewhat
like judging "by the length of the Chancellor's foot"
. For example under the Code the complainant does not have to prove
intent on the part of the Respondent but when intent to
discriminate is found then the awards might differ. In one case
involving a McDonald's restaurant the employer acted in a
totally bona fide manner in finding that the complainant could not
do the work due to a rash she had. The Tribunal found
discrimination and awarded the complainant $25,000 for injury to
dignity, feelings and self respect, representing more than one
year's wages. At the time that was considered by many of us as
a significant escalation of such damage awards.
In the recent case of Ms. L v. Clear Pacific Holdings Ltd.
and others, 2024 BCHRT 14, the Tribunal raised the bar in
awarding damages for injury to dignity, feelings and self respect
by awarding the Complainant $100,000.
The case is highly unusual. The respondent did not appear at the
hearing so the Tribunal relied on the evidence of the Complainant
and her witnesses including some experts. The evidence of sexual
discrimination, assault and abuse was extraordinary. The
Complainant suffered from a drug addiction that the respondent took
advantage of.
The Tribunal summarizes the decision in the opening paragraphs
of the Award:
I caution the reader that this
decision discusses sexual assault and violence.
[2] Ms. L worked as a personal
executive assistant to Sydney Hayden and his companies, Clear
Pacific Holdings Ltd. and Whitehawk Investments Ltd. During her
employment, Mr. Hayden sexually assaulted and harassed Ms. L,
withheld her wages, emotionally abused her, physically assaulted
her, and abandoned her in a foreign country. He exploited her
disability, a substance use disorder, to maintain control over
her.
Clearly the facts in this case are so egregious that there can
be little sympathy for the respondents. I will not summarize the
facts beyond the opening passage quoted above but invite the reader
to review the decision to see how outrageous the respondent's
conduct was.
What was important about this decision was that the Tribunal
analyzed the law under section 37(1)(d)(iii) and awarded the second
highest amount ever, highest was awarded in Francis v BC 2021 BCHRT
16 (Remedy Decision), which I summarized in our article here:
https://www.kswlawyers.ca/blog/bc-human-rights-tribunal-orders-record-damages-award-of-over-1-million-to-terminated-employee-following-racial-discrimination
Injury to Dignity, Feelings and Self Respect
The Tribunal provides a very thorough analysis of the law under
this heading of damages. It is worthwhile to consider the full
legal analysis:
[63] A violation of a person's
human rights is a violation of their dignity. The primary way that
the Human Rights Code addresses this violation is by giving the
Tribunal discretion to order compensation for injury to a
complainant's dignity, feelings, and self-respect. The purpose
of these awards is to compensate the complainant, and not to punish
the respondent.
[64] To determine an appropriate
award, the Tribunal generally considers three broad factors: the
nature of the discrimination, the complainant's social context
or vulnerability, and the effect on the complainant: Torres v.
Royalty Kitchenware Ltd., 1982 CanLII 4886 (ON HRT); Gichuru v. Law
Society of British Columbia (No. 9), 2011 BCHRT 185 at para. 260,
upheld in 2014 BCCA 396. Ultimately, the amount of injury to
dignity damages is "highly contextual and fact-specific":
Gichuru at para. 256. While the Tribunal may consider awards in
other cases, the exercise is not to identify a "range"
established in other cases. Rather, it is to try to compensate a
complainant, as much as possible, for the actual injury to their
dignity: University of British Columbia v. Kelly, 2016 BCCA 271 at
paras. 59-64; Francis v. BC Ministry of Justice (No. 5), 2021 BCHRT
16 at para. 176. In this case, Ms. L seeks an award of $100,000. I
agree this amount is appropriate.
[65] To begin, the nature of the
discrimination was extremely serious. It was ongoing over a
21-month period and included sexual and physical assault, as well
as rampant sexual harassment, and emotional and economic abuse.
This Tribunal has frequently recognized that sexual assault by a
supervisor is "at the extreme end of the spectrum" of
sexual harassment: Ban v. MacMillan, 2021 BCHRT 74 at para. 39; MP
v. JS, 2020 BCHRT 131 at para. 196. Physical assault is in the same
category. The discrimination ultimately resulted in the loss of Ms.
L's employment and – for some period – her ability
to work in any capacity. Because of the significance of employment
to a person's dignity, cases which involve the termination of
employment have often attracted the top end of this Tribunal's
awards: see e.g. Senyk v. WFG Agency Network (No. 2), 2008 BCHRT
376 at paras. 463-470; Basic v. Esquimalt Denture Clinic and
another, 2020 BCHRT 138 at para. 194.
[66] Next, Ms. L was uniquely
vulnerable to the impacts of Mr. Hayden's conduct. In using the
term "vulnerability", I am mindful that the causes of
this vulnerability are rooted in systemic social inequality and not
factors endemic to Ms. L as a person: Nelson v. Goodberry
Restaurant Group Ltd dba Buono Osteria and others, 2021 BCHRT 137
at para. 35; Ms. K at paras. 139-140.
[67] The power imbalance between the
parties was profound. Some of that imbalance was inherent to the
relationship. Ms. L was vulnerable as an employee: Ms. K at para.
143. She had a history of traumatic sexual assault and domestic
violence: Araniva at para. 135. When she began working for Mr.
Hayden, she had an active substance use disorder and was engaged in
expensive court proceedings with her abusive ex-husband over his
refusal to pay spousal support. Mr. Hayden was 17 years older than
Ms. L, and positioned himself as her "mentor" and
caretaker. Most of Ms. L's work took place in the isolation of
Mr. Hayden's home or boat: Basic at para. 202; Araniva, at
para. 134; JS at para. 156.
[68] Mr. Hayden then leveraged these
power dynamics to his advantage. His conduct exhibited many of the
markers that the Tribunal outlined in PN, which allow abusers to
maintain power and control in a relationship: para. 68. He
intimidated and threatened Ms. L, for example telling her that he
had access to her medical records and had given his lawyers
incriminating evidence about her. He denigrated and demeaned her,
infantilized her by calling her a "good girl" and making
her call him "sir", took unflattering photos to embarrass
her, and treated her like a servant that he "owned". He
manipulated her connection to his dog to make her feel guilty and
beholden to him. He blamed her for the abuse, isolated her from her
friends and family by constantly monopolizing her time, and
controlled who she could interact with in Mexico. He justified his
actions by his jealousy and concern for her, and his health
problems. He exerted economic power over Ms. L by ensuring that she
was dependent on him for money and drugs. He knew about Ms. L's
struggles with money. He put Ms. L in the position to constantly
have to be asking for her wages. He encouraged and exploited her
dependence on cocaine by encouraging her to use cocaine from his
supply. He gave her drugs and alcohol and then assaulted her.
[69] In this context, the impact on
Ms. L was profound. I have set out some of that impact already.
Here, I do not intend to repeat myself but rather to identify some
of the most significant considerations. In determining the award, I
have considered all the impact set out in this decision.
I would hope that this case is an outlier based on the most
egregious misconduct of sexual harassment and assault but I am
afraid it is not. In my view over the last number of years the
Tribunal's analysis and awards are moving very much towards
findings that are favourable to complainants both in the context of
liability (including findings of what constitutes discrimination
under the Code) and in making significant damage awards. For a good
recent example of this see my recent blog regarding the City of
Nanaimo: https://www.kswlawyers.ca/blog/mema-v-city-of-nanaimo-a-600-000-wake-up-call-on-human-rights
Coupled with this trend is the Tribunal's struggle to
process and adjudicate complaints—an employer might not find
out for upwards of 2 or 3 years that there is even a complaint
filed and then have to wait another few years before a formal
hearing. That creates a huge problem for employers to marshall the
evidence to defend themselves whereas the complainant and their
lawyer can prepare the evidence in a timely manner.
Employers may think that such cases would never happen to them
perhaps because they are small employers. But remember—it
only takes one employee to have a Human Rights Complaint filed
against you. So the best course of action is to learn what the law
requires and avoid any suggestion that you and your business
discriminated under the Code.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.