THE B.C. HUMAN RIGHTS TRIBUNAL HAS MADE ONE OF THE LARGEST DAMAGES AWARDS FOR INJURY TO DIGNITY, FEELINGS, AND SELF-RESPECT IN CANADIAN HISTORY
In 2021 the British Columbia Human Rights Tribunal (“BCHRT” or the “Tribunal”) made one of the largest damages awards to compensate a Complainant for the injury to their dignity, feelings, and self-respect in Canadian history. In Francis v BC Ministry of Justice (No. 5), [Francis], the BCHRT awarded Mr. Francis more than $964,000 in damages in relation to the discrimination, retaliation/reprisal, and poisoned work environment that he was subjected to during his employment—$176,000 of this award was to compensate him for the injury to his dignity, feelings, and self-respect.
Although the massive damages award in Francis was due to the particularly egregious mistreatment Mr. Francis was subjected to in the workplace and the profoundly negative impact that it had upon him, Francis illustrates a broader trend in Canadian human rights law that all Canadian employers should be aware of. Namely, Canadian human rights tribunals have been awarding complainants increasingly large damages awards in recent years, such that it is more important than ever to provide workers with discrimination-free workplaces.
The Decision & Procedural History
In the 2021 Francis decision, the BCHRT determined the remedies that Mr. Francis was entitled to as a result of the BCHRT’s earlier 2019 decision regarding the merits of Mr. Francis’ human rights application (the “Liability Decision”). In the Liability Decision, the Tribunal found that Mr. Francis had been discriminated against based on his race and colour, retaliated against after seeking to enforce his right to not be subjected to discrimination, and subjected to a poisoned work environment during his employment as a corrections officer at the North Fraser Pre-Trial Centre. In particular, the Tribunal found that Mr. Francis was discriminated against on nine separate occasions and retaliated against twice, which amounted to a poisoned work environment when considered collectively.
Some examples of the discrimination and retaliation that Mr. Francis was subjected to included:
- he was stereotyped as “slow and lazy” and referred to as “Lazy Black Man” by a supervisor;
- his mistakes were treated differently than his non-racialized colleagues;
- he heard about supervisors referring to other Black officers with racial slurs, including the N-word;
- he was regarded as overly sensitive and as having played the “race card” after he reported incidents of discrimination and requested that they be investigated, and some of these incidents were not investigated in a timely manner;
- he was retaliated against by two supervisors after filing a human rights complaint, including by:
- one supervisor misreporting Mr. Francis’ behaviour to management, which resulted in Mr. Francis being reprimanded; and
- another supervisor ordering Mr. Francis to breach protocol and then reprimanded him for doing so.
In light of that, Mr. Francis requested a total remedy of approximately $1,200,000, whereas his former employer submitted that less than $400,000 would be appropriate. In considering these submissions, the Tribunal noted that the purpose of awarding Mr. Francis compensatory damages is to restore him to the position he would have been in had the discrimination and retaliation against him not occurred, to the extent possible. Notably, like the Human Rights Tribunal of Ontario (“HRTO”), the BCHRT is empowered to award damages to a person who has been discriminated against to compensate them for any loss of wages resulting from the discrimination, as well as an amount that the Tribunal considers appropriate to compensate the person for the injury to their dignity, feelings, and self-respect.
In addition to awarding Mr. Francis approximately $264,000 for past loss of earnings and $431,000 for future loss of earnings, among other damages, the Tribunal also determined the appropriate compensation for the injury to his dignity, feelings, and self-respect. In doing so, the Tribunal considered various factors, including:
- the nature, time period, and frequency of the discrimination;
- the vulnerability of the complainant;
- the impact of the discrimination upon the complainant; and
- the totality of the relationship between the parties.
Notably, the Tribunal made the following findings in respect of those factors:
- the nature of the discrimination was serious—Mr. Francis was subjected to “virtually the entire spectrum of racial discrimination and harassment in the workplace, escalated into retaliatory behaviour, and resulted in a poisoned work environment”;
- Francis was particularly vulnerable to the mistreatment he suffered in light of the safety-sensitive nature of his corrections officer position, the fact he had been discriminated and retaliated against by his co-workers and supervisors, and given that trusting one’s colleagues is essential to feeling safe in a job where one could be attacked by inmates at any time;
- the impact of the discrimination on Mr. Francis was extreme—it caused him to develop a serious mental illness, to lose his employment, to become permanently disabled, to experience financial stress and to lose his home, and to experience negative social and family impacts and a deterioration of his physical health; and
- the totality of the relationship between Mr. Francis and the other parties exacerbated his vulnerability and how he was negatively impacted by the mistreatment.
In light of the above, the Tribunal found that an award of $220,000 would be reasonably proportionate to the extreme injury to dignity, feelings, and self-respect that Mr. Francis suffered. The Tribunal further found that a reasonable estimate was that 80% of the losses that Mr. Francis experienced flowed from the contraventions for which the employer should be held responsible, and so, with a 20% reduction for contingencies, it awarded him $176,000 for the injury to his dignity.
Although Francis was decided by the BCHRT rather than the HRTO, Francis serves as an important reminder for Ontario employers of how costly it can be to fail to provide a discrimination-free workplace. As noted above, Mr. Francis’ former employer was ordered to pay him more than $964,000 in damages in relation to the discrimination, retaliation/reprisal, and poisoned work environment that he was subjected to during his employment.
Francis is also indicative of a trend among human rights tribunals across Canada awarding Complainants increasingly large awards to compensate them for the injury to their dignity, feelings, and self-respect arising from the discrimination they were subjected to. Notably, in 2018 the HRTO set a record by awarding the Complainant in AB v Joe Singer Shoes Limited [Joe Singer Shoes] $200,000 for injury to dignity, feelings, and self-respect—the largest award of this type of damages in Canadian history.
Moreover, Canadian human rights tribunals can and do take damage awards from other Canadian jurisdictions into account when assessing damages, just as the BCHRT considered the HRTO’s $200,000 in Joe Singer Shoes before awarding Mr. Francis $176,000 in injury to dignity damages. As a result, Francis may be considered by the HRTO in the future and serve as a basis to make similarly large damage awards against Ontario employers that fail to maintain discrimination free workplaces.