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BC Human Rights Tribunal Issues Unprecedented Injury to Dignity Award

MT+Co. Workplace Law Group - February 8, 2021 under Business Advisory

On January 28, the BC Human Rights Tribunal (“BCHRT”) issued a landmark decision granting the largest award for injury to dignity in BC’s history. The complainant, Levan Francis, was a former corrections officer for the Province who experienced discrimination based on his race and colour during his employment. This discrimination caused Mr. Francis’ mental and physical health to deteriorate and forced him to leave his job. The BCHRT awarded him $964,000 in damages; $176,000 of which was allocated to injury to dignity – the full decision is available here.

Mr. Francis’ path to this unprecedented award was long and arduous – he filed his complaint in 2012 and left his employment in 2013, but the decision finding he was discriminated against was not reached until July 2019. During this time, his experiences at North Fraser Pre-trial Centre continued to haunt him. Stereotyped as lazy and slow, he was singled out by his supervisors and referred to as a “Lazy Black Man” and belittled “because you’re Black.”[1] When Mr. Francis tried to report incidents or raise his concerns, he was characterized as being sensitive, overreactive, and manipulative. After he filed his human rights complaint, he was called a “rat”[2] and two of his supervisors retaliated against him; one by misreporting him to management, and the other by ordering him to breach protocol and then reprimanding him.[3] Since leaving in 2013, Mr. Francis has been unable to work and his family has experienced significant hardship, including loss of their family home. His wife has said that the case has “destroyed him as a human.”[4]

What is injury to dignity?

“A violation of a person’s human rights is a violation of their dignity,”[5] stated the BCHRT when setting out their reasons for Mr. Francis’ injury to dignity award, “…[and] the purpose of an injury to dignity award is to compensate the complainant for the actual harm they have suffered as a result of the discrimination.”[6]

Specifically, an injury to dignity award is meant to cover injury to the complainant’s dignity, feelings, and self-respect and is based on the nature, extent, and impact of the discrimination, as well as the vulnerability of the complainant. In Mr. Francis’ case, the BCHRT found that he experienced “virtually the entire spectrum of racial discrimination and harassment in the workplace”[7], including racial slurs, stereotyping, unjust criticism, and retaliation. The impact on Mr. Francis was described as “extreme”[8] warranting an unprecedented injury to dignity award.

How much can be awarded?

Injury to dignity awards have been increasing over the years, a trend discussed by the BC Human Rights Clinic blog in July 2020 and that is evident from recent decisions. This latest award is a significant increase from the previous high-water mark set in University of British Columbia v. Kelly, 2016 BCCA 271, where the BC Court of Appeal upheld the BCHRT’s injury to dignity award of $75,000. Notable injury to dignity awards in 2019 and 2020 include:

It is important to note that there is no monetary limit on injury to dignity awards. For more information on BCHRT Awards by prohibited ground of discrimination, check out a breakdown prepared by the BC Human Rights Clinic.

What are employers responsible for?

Employees are protected from discrimination in their employment by human rights legislation, like the Canadian Human Rights Act and the BC Human Rights Code (“Code”). The applicable jurisdiction will depend on what jurisdiction their employer operates in. Discrimination is unjust or prejudicial treatment based on a personal characteristic such as race, sex, physical or mental disability, age, religion, or gender identity etc.

BC employers have two duties under the Code: a duty not to discriminate and a duty to accommodate. The duty not to discriminate means an employer must not let discrimination based on personal characteristics impact hiring, firing, promotions, benefits, or discipline. The duty to accommodate requires the employer to make all reasonable efforts to prevent an employee from experiencing the negative effects of discrimination.

For more information about discrimination in employment, visit the BCHRT’s Human Rights and Duties in Employment.

Want More?

If you have any questions about your responsibilities as an employer and how to implement effective workplace strategies to prevent discrimination, or if you are an employee that believes they may have had their rights under the Code breached, please feel free to contact Ryley MennieLou Poskitt or Connor Levy from our Workplace Law Group.

A special thank you to our articling student, Linette Lubke, for her contributions to this blog post!

Endnotes:
[1] Francis v. BC Ministry of Justice (No. 5), 2021 BCHRT 16 at para 7 (“Francis”).
[2] Francis at para 163.
[3] Francis at para 7.
[4] Francis at para 216.
[5] Francis at para 153.
[6] Francis at para 154.
[7] Francis at para 159.
[8] Francis at para 202.


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