Written by: Sara Hanson and Liam Turnbull
In two recent decisions, the BC Human Rights Tribunal has again stated that the trend in awards for compensation for injury to dignity, feelings and self-respect is upwards.
In RR v. Vancouver Aboriginal Child and Family Services Society (No. 6), 2022 BCHRT 116, the Tribunal awarded the complainant $150,000 – the Tribunal’s second highest injury to dignity award to date. RR identified as an Afro-Indigenous woman with disabilities related to inter-generational residential school trauma. The Tribunal determined that the Vancouver Aboriginal Child and Family Services Society (“VACFSS”) discriminated against her on the grounds of race, colour and mental disability contrary to section 8 of the BC Human Rights Code (the “Code”) when they took her children into custody and unjustifiably restricted access between them.
The Tribunal concluded that a high injury to dignity award was justified for a number of reasons. First, the discrimination RR experienced was “profound” since “state removal of a child engages a parent’s right under the Charter of Rights and Freedoms to security of their person” (at para. 395). The fact that RR and her children were Indigenous was particularly important given the legacy of residential school systems and ongoing harms from child welfare. The Tribunal noted that RR was particularly at risk as an inter-generational survivor of residential schools who was subjected to racial and economic discrimination her entire life. Further, the discrimination RR experienced was extensive as it took place over the course of two years. Finally, the discrimination had a significant effect on RR’s life – it exacerbated her mental health conditions and even led to her becoming homeless for a period of time. Importantly, the Tribunal noted that RR did not need to submit expert evidence because she was an “expert in her own experience” of the emotional harm caused by VACFSS’s conduct (paragraph 408).
RR sought an award of $150,000, relying on Francis v. BC Ministry of Justice (No. 5), 2021 BCHRT 16, where the Tribunal awarded the complainant $176,000 as compensation for injury to dignity (the highest award ever ordered by the Tribunal). In determining the appropriate award, the Tribunal in RR acknowledged that “there is no mathematical formula that calculates dignity” (at para. 416), and that it is not bound by awards from previous cases and any ‘range’ they purport to establish.
The Tribunal also observed that while most injury to dignity awards in BC are between $10,000 and $40,000, “the trend is upwards”, and in Ontario, damages for human rights complaints have been higher (at para. 422). Given the extreme impact of the discrimination on RR’s life, the Tribunal concluded that an award of $150,000 was appropriate.
In K v. RMC Ready Mix Ltd. and another (No. 4), 2022 BCHRT 108, the complainant was awarded $20,000 as compensation for injury to dignity associated with discrimination regarding their employment on the basis of a disability. While this amount was not nearly as high as the amount RR received, in making this award, the Tribunal also acknowledged the upward trend in damages.
K was an employee at RMC with mental health conditions, including a substance use disorder. After disclosing this fact to his employer, RMC attempted to accommodate K by paying for his residential treatment program. However, in order for K to return to work, RMC also required him to sign a last chance agreement promising to abstain from drugs and alcohol and undergo mandatory random drug testing in accordance with their drug and alcohol policy. When K refused to sign the last chance agreement and participate in the drug testing, RMC terminated his employment.
The Tribunal determined that the Respondents discriminated against K on the basis of mental disability contrary to section 13 of the Code because K’s disability was a factor in RMC’s decision to terminate him. Moreover, RMC failed to establish that they provided a reasonable accommodation tailored to K’s particular circumstances. The Tribunal also determined that the return-to-work conditions RMC imposed on K were not reasonably necessary.
While K sought $60,000 as compensation for injury to dignity, the respondents argued that an appropriate award was between $1,000 and $3,000, relying on several prior decisions of the Tribunal where the damages awarded were within this range. In reply, K relied on Francis and University of British Columbia v. Kelly, 2016 BCCA 271, for the proposition that the Tribunal’s analysis should focus on the actual harm he suffered.
In awarding K $20,000, the Tribunal acknowledged the “inherent power imbalance” between K and his employer, as well as the damaging stereotypes facing persons with mental disabilities (at paras. 240-241). However, the Tribunal distinguished Francis, noting that the discrimination K experienced only spanned a couple of months as opposed to a number of years. Finally, the Tribunal noted that the cases relied upon by the Respondents were either older cases that did not reflect the Tribunal’s trend toward higher awards for injury to dignity or were easily distinguishable on the facts (at para. 249).
Both decisions explicitly reference the Tribunal’s continuing upward trend toward higher awards for compensation for injury to dignity. These decisions confirm that in light of this trend, the Tribunal’s older decisions will carry less weight in support of the appropriate amount for injury to dignity. Rather, the Tribunal’s analysis will focus on the unique facts of the case before it, as well as the impact of the discrimination on the complainant.
The decision in RR is particularly noteworthy because in addition to awarding the second highest award for injury to dignity, the decision sets an important precedent for complaints brought under s. 8 of the Code alleging discrimination in services where injury to dignity awards have historically been much lower than complaints brought under s. 13 of the Code alleging discrimination in employment.