Human Rights Tribunal Issues Second Highest Award For Injury To Dignity

• Published date: 14 February 2024
• Subject Matter: Employment and HR, Government, Public Sector, Litigation, Mediation & Arbitration, Discrimination, Disability & Sexual Harassment, Employee Benefits & Compensation, Employee Rights/ Labour Relations, Human Rights, Personal Injury
• Law Firm: Kane Shannon Weiler
• Author: Mr Christopher Drinovz

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...