Until recently, the damages awarded by human rights tribunals, courts and arbitrators across the country for human rights violations were relatively modest. In the past few years, we have seen those awards increase, although not to an outrageous level. But that might all be changing, as two recent decisions out of Western Canada - one out of British Columbia and the other out of Alberta - suggest. The reason? Huge general damages awards - $125,000 in The City of Calgary and CUPE, Local 38 (PDF) and $75,000 in Kelly v. University of British Columbia (PDF). In both cases, these awards are in addition to amounts awarded for wage loss or other damages.
In the Alberta case, an arbitration board (the “Board”) awarded an employee who had been sexually assaulted on a number of occasions by a senior foreman $125,000 as general damages, in addition to her damages related to lost income.
And the day after the Board issued its decision in the Alberta case, the British Columbia Human Rights Tribunal released its decision in which it drastically upped its record award for injury to dignity, feelings and self-respect to $75,000. This more than doubled its previously highest award of $35,000.
The City of Calgary and CUPE, Local 38 (“Calgary”)
The circumstances in Calgary were described by the Board as “a tragic case”. The employee was initially sexually assaulted 8 times in a period of just under 3 weeks. The assaults consisted of fondling by a foreman while she was at her desk. After reporting the assaults, she was sexually assaulted again during the following week. The employee installed a spy camera and caught an assault on camera.
After reporting the assaults, the employee suffered further indignation, including having her keyboard sabotaged with what she thought was rat poison. Despite the perpetrator being criminally charged and pleading guilty, management requested that the employee undergo an Independent Medical Examination (IME) and provide a return to work certificate even though she did not claim absence due to sickness. The employee felt she was being blamed for what had happened.
Subsequently, the employee was admitted to hospital as a result of suicide ideation and had ongoing medical issues. A psychiatrist conducted an IME and concluded that the employee’s psychological difficulties were caused by the sexual assaults and aftermath.
Referring in part to a decision of the Ontario Human Rights Tribunal, the Board noted the following as relevant to a general damages award for a breach of the Human Rights Act:
- the nature of the discriminatory conduct;
- the complainant’s particular experience in response to the discrimination;
- particular emotional difficulties experienced by the complainant;
- the extent of the misconduct; and
- if focus is placed on the employee claiming harassment, de-emphasizing the responsibility of the harasser and other employees.
The Board said that the employer failed in its obligation to provide support to the employee. Based on the sexual assaults and subsequent events, and the medical evidence, the Board concluded an award of $125,000 for general damages was justified. Including those general damages, the total amount of damages awarded to the employee in that case was a whopping $869,022.
Kelly v. University of British Columbia (No. 4) (“Kelly”)
In the Kelly case, the complainant was a medical resident in the University of British Columbia (“UBC”) medical school. He suffered from ADHD and a non-verbal learning disability. After failing his first rotation in the Residency program, he disclosed his disabilities and was asked to a see a psychiatrist. In 2007, the complainant was dismissed from the Family Medicine residency program for “unsuitability”. The Tribunal determined that the dismissal was related to the complainant’s disabilities and was thus discriminatory.
The Tribunal gave the following reasons for making the $75,000 award for injury to dignity, feelings and self-respect in that case:
- the complainant lost the opportunity to practice in the career of his choosing, which he had spent considerable time and resources pursuing;
- the complainant was pursuing a life-long desire and the lost opportunity had a serious and detrimental impact on him;
- the complainant suffered deep humiliation and embarrassment as a result of the discrimination;
- the complainant suffered embarrassment and barriers to other employment;
- the complainant lost his income, moved back in with his parents and lost his independence;
- the complainant’s relationships with his family and friends became strained and he isolated himself socially; and
- the complainant was in a vulnerable position as a resident who suffered from a mental disability and was dependent on UBC to accommodate him to complete his residency.
Including the $75,000 for injury to dignity, feelings and self-respect, UBC was ordered to pay the complainant $460,194 in damages (not including expenses, a tax gross up, and interest).
These decisions show the continued upward progression of the financial risk involved with failure to comply with human rights obligations. Employers should take heed: it is not only your reputation that is on-the-line in a human rights complaint, but also your pocketbook. As the Calgary case demonstrates, it is more important than ever before to take all complaints seriously, including conducting a fullsome investigation, before taking any action.