Landmark Compensation Award in a British Columbia Discrimination Case

Written by Daniel Standing LL.B., Editor, published by First Reference

In 2019, the British Columbia Human Rights Tribunal found that Levan Francis was the victim of discrimination on the basis of his race and colour at the hands of his employer, the Ministry of Justice, North Fraser Pre-trial Centre. The damage was extensive: Francis suffered a serious mental illness that prevented him from working in any occupation. In a follow-up decision, the Tribunal determined what remedies were available to Francis. Since the governing principle on remedy is to put someone back in the original position, the fact that almost a million dollars was awarded speaks strongly to the extent of the discrimination.

Background

In its 2019 decision on liability, the Tribunal determined that nine incidents constituted discrimination and retaliation creating a poisoned work environment contrary to the Human Rights Code. The question of fact before the Tribunal in the present matter was the extent to which Francis’ losses could be attributed to the discrimination.

Francis’ losses were extensive. In 2013, he lost his employment and has been unable to work since. He developed a deeply rooted psychiatric illness and his physical health markedly declined. After leaving North Fraser in 2013, Francis experienced significant financial loss and this was exacerbated when his LTD benefits were terminated in 2018. The work-related turmoil spilled over into his family life, disrupting his formerly happy and stable relationship with his wife and children. Lest this brief overview belie the extent of the harm, it is worth quoting Francis’s wife, who stated that what happened at North Fraser has “destroyed him as a human.”

The Tribunal’s decision

The Tribunal determined that the nine contraventions were the cause of Francis’s mental illness following 2013. His illness developed during the period of the contraventions, and he had no pre-existing mental health conditions. He left the workplace in 2013 because it was a poisoned environment that left him with no other choice. It was a chronically dysfunctional workplace where he was not welcome.

Next, the Tribunal considered various intervening events and the impact they might have had on Francis. There were hiccups in the administration of Francis’s benefits that led to various delays and disruptions, but these were not at the hands of the employer since they were managed by third parties. However, the Tribunal rejected the argument that any delays in the administration of his benefits was due to Francis’s failure to diligently provide medical information and participate in an assessment.

Francis was compliant with his treatment, the Tribunal found. He took reasonable steps to treat his conditions. The Tribunal rejected the employer’s argument that Francis failed to reasonably mitigate his losses.

The bulk of the Tribunal’s decision concerns the various remedial orders that flowed from these factual findings. First, the Tribunal ordered that the employer cease the discrimination and retaliation outlined in the liability decision and it issued a declaratory order that the respondent employer discriminated against Francis.

Next, the Tribunal turned to lost wages. To unlock these damages, Francis had to simply show “some causal connection” between the discrimination and the loss claimed. This was easily established in this case, but the discretionary matter of quantum was more difficult because some of the intervening events around his benefits made matters worse. For that reason, the Tribunal assessed 80 percent of the losses in this regard to the discriminatory contraventions.

Guided by expert testimony on labour economics and income and pension loss valuation, the Tribunal determined that compensation for past wage losses was due in the amount of $264,060.

Despite the highly speculative nature of future wage loss claims, the Tribunal took stock of Francis’s permanent impairment and stated that a future loss of earnings award was justified by the “extraordinary circumstances” of this case. It assessed these damages at $431,601, together with pension loss to age 63 of $65,881.

As for injury to dignity, the Tribunal noted the nature, time period and frequency of the contraventions. This was a case where Francis experienced overt racism every day. He faced discrimination and retaliation by both his supervisors and his coworkers. His vulnerability was enhanced because he held a safety-sensitive position as a segregation officer, meaning his own physical safety was compromised by the discrimination. No one had his back. In its highest award ever under this heading, the Tribunal awarded $176,000 in damages, more than $100,000 more than ever previously awarded under this heading.

Key takeaways

Thankfully, this case is anomalous in respect of the degree and duration of the discrimination that the complainant endured. However, the same legal principles apply to less egregious cases. Employers can take note of this case as a stark reminder of the financial liability that follows discriminatory conduct, and especially of the employer’s duty to prevent such situations from ever occurring because when they do, they are costly. More importantly, although damages are meant to compensate a person as much as possible, money cannot fix a broken mind. The key takeaway, therefore, is to ensure that from top to bottom, members of an employer’s organization are committed to recognizing and eliminating discrimination from the workplace.