In a decision released on January 28, 2021, the British Columbia Human Rights Tribunal (“BCHRT”) has more than doubled the highest-ever payment to a complainant for injury to dignity, awarding $176,000 in general damages as part of an award in which the total damages approach $1,000,000.
Below, we discuss the decision, the substantial damages awarded, and the implications for employers.
Levan Francis, 51, a former officer with B.C. Corrections, left his position at North Fraser Pretrial Center in Port Coquitlam in 2013 after facing racial slurs and physical attacks from co-workers and management. He filed a complaint related to this harassment in 2012, and has been engaged in the legal process ever since.
Mr. Francis sought an award of $220,000 in damages for injury to his dignity, feelings and self-respect. Previously, the largest award by the BCHRT was $75,000 in the decision Kelly v. UBC, 2013 BCHRT 302. That case involved multi-year discrimination against a medical resident with a mental disability and the award was ultimately upheld in a subsequent decision of the BC Court of Appeal. For context, the average “injury to dignity” award over the past decade in British Columbia has been in the range of $10,000.
In the case of Mr. Francis, the BCHRT concluded that the harassment and discrimination he endured “struck at the core of Francis’ identity and feelings of self-worth and emotional well-being.” Mr. Francis was particularly vulnerable because of the nature of his job and his genuine fear that he could not count on his colleagues for help if something dangerous happened at work. Finally, the BCHRT pointed to the severe social, mental and financial stresses the discrimination had caused Mr. Francis. Whether these factors justify an award which more than doubles the highest-ever award in the province may well be something answered on judicial review.
Also notable was that, in addition to the substantial award for injury to dignity, Mr. Francis was awarded more than $750,000 as compensation for past and future wage loss and pension loss on the basis that, due to the discrimination and mistreatment he suffered in the workplace, he was entirely unable to work, through to his retirement age.
The amounts reported above are those that were awarded to Mr. Francis after the BCHRT applied a “discount” of 20% to account for the contingency that the harm he experienced may have occurred in any event due to other intervening events after he left the workplace, such as the difficulty he encountered in accessing benefits. The full amount of the award for injury to dignity was $220,000 in recognition of the “extreme” injury Mr. Francis suffered, which was then reduced to $176,000 on the basis of a 20% contingency.
This case signals that the BCHRT is willing to make significant injury to dignity awards if the circumstances warrant them. The amount of the award in this decision could influence future awards, both at the high end of the award spectrum and the median amount awarded as there is no cap to injury to dignity awards in British Columbia.
If you have any questions regarding this development or any other workplace law issues, please do not hesitate to contact a Mathews Dinsdale lawyer.
