In one of the more noteworthy trends visible in human rights decisions throughout the last few years, human rights tribunals across the country have been increasing monetary awards to successful complainants – sometimes incrementally, sometimes in more dramatic fashion. Most recently, an award granted by the British Columbia Human Rights Tribunal (the "BCHRT" or the "Tribunal") to a former B.C. correctional officer was substantially larger than any previous award for injury to dignity.
Mr. Levan Francis worked at the North Fraser Pretrial Centre as a correctional officer. In 2012, he filed a claim alleging he was discriminated against due to his race and was the subject of multiple instances of harassment. Mr. Francis claimed injury to his dignity, feelings, and self-respect. There is no legislated cap on the amount the BCHRT may award under this head of damages.
In his claim, Mr. Francis raised 32 incidents of conflict. As part of the legal process, nine of the incidents were deemed discrimination and two were deemed retaliation. Fifteen incidents were found to fall outside the applicable period reviewable by the BCHRT and were therefore excluded from further consideration.
In its deliberations on remedy, the Tribunal explained that "an injury to dignity award is meant to compensate the complainant for the actual harm they have suffered as a result of the discrimination".1 After reviewing the merits of the arguments from both sides, the Tribunal found the impacts of the discrimination on Mr. Francis were extreme. Due to the toxic work environment, Mr. Francis developed a mental illness, lost his ability to work, experienced severe deterioration in his physical and social well-being, and suffered financially as a result. The Tribunal concluded that "what Mr. Francis experienced encompasses virtually the entire spectrum of racial discrimination,"2 and due to the circumstances of his job, he was particularly vulnerable.
Ultimately, the BCHRT awarded $176,000 as damages for injury to dignity. This amount – which is unprecedented in its scope – must also be viewed in the context of the award as a whole, which featured other very large amounts: the BCHRT also awarded Mr. Francis $761,542 for lost wages and $26,655.24 for expenses and disbursements.
By way of comparison, the highest amount awarded for injury to dignity in Alberta was in City of Calgary v. CUPE, 2013 AB GAA 88297 [CUPE], where the arbitrator awarded $125,000 under that head of damages. The BCHRT considered the CUPE award in its analysis and assessed Mr. Francis' circumstances as more extreme.
The significance of this decision is somewhat obvious: it indicates that the BCHRT is willing to issue very substantial awards for injury to dignity where it deems them appropriate. In Alberta, the law governing damages for human rights legislation breaches provides for general damages, including injury to dignity and mental distress. The impact of the Francis decision on future cases (and particularly cases in jurisdictions outside B.C.) remains to be seen; however, it is likely the high amount of the award will be a topic for discussion, at the very least, with the potential to influence the outcome of future discrimination and injury to dignity complaints across the country. Employers should be aware that failing to prevent or swiftly resolve discrimination scenarios in the workplace could very well cost them more than ever before.
1. Francis v. BC Ministry of Justice (No. 5), 2021 BCHRT 16, para 154 [Francis].
2. Francis para 216.
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