A MORE POTENT HUMAN RIGHTS ENVIRONMENT

By Preston I.A.D. Parsons

If you or your organization have made or defended a complaint before British Columbia's Human Rights Tribunal (the "Tribunal") in the past few years, you are likely aware that the Tribunal has been increasing the value of discretionary awards, flexing its powers more regularly, and asserting more control over its processes.

This article examines some of these trends and developments.

Rising Injury to Dignity Awards

The Tribunal has the power to make general damage awards to successful complainants for "injury to dignity". These awards are intended to be compensatory, not punitive. While the Tribunal compensates successful complainants for quantitative monetary losses such as lost income arising from discrimination, "injury to dignity" damages are a unique category of damages that seek to compensate the complainant based on both the objective severity of the harm occasioned on the complainant, as well as the complainant's subjective view of the experience.

Awards for injury to dignity have been generally increasing in value, with the Tribunal stating in Biggings obo Walsh v. Pink and others - and other decisions since - that "[t]he trend in damage for injury to dignity is upwards,"1 particularly since 2012. The trend has affected not only awards arising out of discrimination in employment, but also discrimination arising out of other areas such as housing.

While the high water mark in BC remains $75,000.00 for an injury to dignity award, the value of awards under that mark have generally risen. This makes comparing awards in past human rights decisions very difficult. Across the country, Ontario has frequently awarded amounts higher than $75,000.00. Ontario's awards are not binding in British Columbia, but do hold some persuasive value. The high water mark in Ontario is $200,000.00 for an injury to dignity award.

Where the case involves findings of sexual harassment or assault, especially on behalf of particularly vulnerable complainants, injury to dignity awards continue to rise.

Given these trends, an unsuccessful respondent at the Tribunal should be prepared for the possibility of a larger than expected injury to dignity award. As we begin a new decade, it is only a matter of time before the Tribunal finds a new high water mark case.

Costs for Improper Conduct

Another area in which the Tribunal has become more assertive is the imposition of costs for "improper conduct" by a party to the complaint. These cost awards serve the opposite purpose to an injury to dignity award: they are intended to be punitive and to act as a deterrent. The factors that go into considering whether to make a costs award for improper conduct include:

(a) the nature and severity of the behaviour being sanctioned;
(b) the ability of a party against whom costs are awarded to pay that award;
(c) the relative culpability of the party with respect to the behaviour in question;
(d) any factors, such as disability, which may have contributed to the behaviour in question; and
(e) any other consequences to the party which have arisen as a result of the sanctioned behaviour.2

Historically, cost awards at the Tribunal are rare and most of them are on the more nominal end of $1,000.00 - $5,000.00.3 The highest recorded cost award by the Tribunal is nearly $32,000.00, and that was awarded 21 years ago.4

Recently though, in Gichuru v. Vancouver Swing Society No. 3, the Tribunal awarded the respondent $10,000.00 due to the improper conduct of the complainant.5 In Gichuru v. Purewal, the complainant was awarded $10,000.00 due to the improper conduct of one of the respondents.6 More substantially, in Oger v. Whatcott (No. 7) the Tribunal awarded $20,000.00 to the complainant for the respondent's improper conduct.7 While these three cases involved egregious actions, their awards in 2017, 2019, and 2020 send a message that the Tribunal is increasingly willing to rebuke improper conduct through more frequent, and perhaps generally rising cost awards.

Vexatious Litigants

Recently, in the case of Gichuru v. Vancouver Swing Society No. 3,8 the Tribunal made the functional equivalent of a vexatious litigant order against a complainant. In so doing, it barred him from filing any complaints based on section 43 of the Human Rights Code - the "retaliation" section - without first obtaining leave of the Tribunal to do so. This is a significant, extraordinary step.

Factors considered by the Tribunal as relevant to its determination included:

  • The complainant's history before the Tribunal, including the volume of complaints filed and the number of wins and losses;
  • That the complainant had previously been found to have provoked discrimination;
  • That the standard screening review at the Tribunal is not adequate enough to protect the integrity of the Tribunal from retaliation complaints filed by this complainant; and
  • The complainant's litigation history more generally, including that British Columbia courts had found this complainant to be vexatious in certain contexts already.

The Tribunal noted concern over other types of complaints filed by this complainant, but felt that the Tribunal's usual initial screening process would suffice for those, at least for now.

Summary

As we enter 2020, we can expect to see a more assertive Tribunal. Complainants and Respondents would do well to reflect on these developments, especially with rising injury to dignity awards increasing the potential recovery of Complainants before the Tribunal. Businesses should take particular care to ensure they are meeting their obligations under the Human Rights Code so as to ensure a healthy workplace and to avoid human rights complaints from arising wherever possible.


1 2018 BCHRT 174
2Gichuru v. Vancouver Swing Society No. 3, 2020 BCHRT 1 at para 239
3 Gichuru v. Purewal, 2017 BCHRT 19 at para 330
4 See Theodoridis v. Long & McQuade and Martel, 1999 BCHRT 35
5Supra note 2
6Supra note 3
72019 BCHRT 58
8Supra note 2