Ms. L v. Clear Pacific Holdings Ltd. and others, 2024 BCHRT 14

Written by: Afifa Hashimi

Content warning: This post and the decision it refers to discuss sexual assault and violence. 

Sara Hanson and Afifa Hashimi of Moore Edgar Lyster LLP successfully represented the Complainant, Ms. L, in Ms. L v. Clear Pacific Holdings Ltd. and others, 2024 BCHRT 14. The BC Human Rights Tribunal found that the Respondents discriminated against Ms. L on the basis of sex and disability, in violation of section 13 of the BC Human Rights Code.

Ms. L worked as a personal executive assistant to the Respondents. The Tribunal found that during Ms. L's employment, the individual Respondent sexually assaulted and harassed Ms. L, withheld her wages, emotionally abused her, physically assaulted her, and abandoned her in a foreign country. The Tribunal also found that the Respondent exploited Ms. L's disability, a substance use disorder, to maintain his control over her.

In this precedent-setting decision, the Tribunal awarded Ms. L $100,000 as compensation for injury to her dignity, feelings and self respect. The amount represents the highest award of compensation for injury to dignity that the Tribunal has awarded for sexual harassment and assault to date and doubles the previous highest award for sexual harassment: PN v. FR and another (No. 2), 2015 BCHRT 60.

The Tribunal agreed with Ms. L that an award of $100,000 was appropriate. It found that the increase in comparison to previous cases was justified by the nature and lengthy duration of the discrimination, its pervasiveness in almost all aspects of Ms. L's employment, and the fact that it included physical and sexual violence. The Tribunal also considered the lifelong impact of the discrimination on Ms. L, the fact that the power imbalance between the parties was profound, and the fact that the Respondent used the power dynamics to his advantage.

 In addition to the significant award of damages for injury to dignity, the Tribunal also ordered the Respondents to pay Ms. L $61,541.90 for wage loss, and $8,699.84 for expenses, flowing from the discrimination. As a result of the discrimination, Ms. L lost her employment, her ability to mitigate her damages by looking for other work, and her ability to return to her previous vocation, necessitating that she retrain for other forms of work. The Tribunal therefore awarded past wage loss, as well as future wage loss to December 2024, when Ms. L was expected to complete her retraining.

 This decision represents a significant increase in potential compensation available for survivors of sexual harassment and assault who choose to pursue complaints before the Tribunal, or through grievance processes available to unionized workers.

 The significant injury to dignity award in this case is consistent with the Tribunal’s general upward trend in injury to dignity awards in recent years. It is encouraging to see this trend continue in order to properly compensate survivors, like Ms. L, for the impact of discrimination they experience.

Moore Edgar Lyster LLP commends Ms. L for her strength in seeing her complaint through to a hearing. In the words of Ms. L during her testimony "I never thought I would be able to get to today and be able to do this. This is for me like taking back my power and being able to tell my truth."

 Read the Decision Here…

Vancouver Shipyards Co. Ltd. -and- Marine Shipbuilders, Local 506, 2022 CanLII 100825

The Grievor’s urine tested positive for cannabis metabolites following an incident. The Employer required him to attend an examination with an employer-selected physician, submit to a year of random drug tests, and suspended him for 10 days. The Arbitrator held that none of the Employer’s actions were justified and ordered that the Grievor be made whole, including by awarding $15,000 in privacy damages.

Read the decision here …

Gibraltar Mines Ltd. v. British Columbia (Human Rights Tribunal), 2022 BCCA 234

Lindsay A. Waddell of Moore Edgar Lyster LLP and Heather Hoiness of the Office of the Human Rights Commissioner of B.C. successfully represented the Commissioner in an application for leave to intervene in the B.C. Court of Appeal. The appeal concerns the proper interpretation of family status discrimination under the B.C. Human Rights Code. The Chambers Justice agreed that the Commissioner has a unique and broad perspective and that her participation in the appeal on the statutory interpretation issue would be of assistance to the Court. Lindsay and Heather will also represent the Commissioner at the upcoming appeal.

Read the decision here…

Vancouver Shipyards Co. Ltd. v CMAW, Local 506 Marine and Shipbuilders, 2022 CanLII 51909 (BC LA)

The Union grieved the Employer’s decision to order the Grievor to undergo post-incident drug and alcohol testing.

The arbitrator held that the drug and alcohol testing was not justified in the circumstances and was a violation of the Grievor’s privacy and bodily integrity rights.

The incident, in which the Grievor accidentally caused a large aerial work platform to contact another machine at low speed, did not rise to the level of a “significant event" as defined in the Employer’s policy and the jurisprudence. There was no significant damage and there were no injuries. The Employer’s speculations that someone could have been injured or there could have been significant damage to property of the Company were very remote possibilities and worst-case scenarios. During the investigation, there was nothing in the Grievor’s responses that would have rationally led to the conclusion that impairment played any role in the incident.

The arbitrator held that testing cannot be used when the only justification is ruling out the possibility of impairment. The Grievor was awarded $1000 in damages.

Read the Decision here…

Pacific Honda v. International Association of Machinists and Aerospace Workers, Local Lodge 1857

The Union grieved the Employer’s failure to recognize National Day for Truth and Reconciliation as a designated statutory holiday under the Collective Agreement.

Arbitrator Saunders agreed with the Union’s argument that National Day for Truth and Reconciliation is a statutory holiday under the collective agreement, and ordered the Employer to recognize it as such, and to compensate the employees for the losses occasioned to date. The Arbitrator applied well-known collective agreement interpretation principles to conclude that the phrase “forced by legislation to close its operation” cannot be read in its literal sense. Therefore, the phrase must be a description of the legislative context in which businesses either close, or pay wages at a premium, given the legislative context in which the collective agreement exists.

Read the decision here…

Finning (Canada) v International Association of Machinists and Aerospace Workers Vancouver Lodge 692 (COVID-19 Vaccination Disclosure Policy), 2022 CanLII 25773 (BC LA)

After the Employer implemented a COVID-19 Vaccination Disclosure Policy requiring that employees either disclose that they had been fully vaccinated against COVID-19 or show proof of a negative Rapid Antigen Test, the Union grieved the aspects of the Policy which required employees to pay for their own rapid tests and conduct the tests on their own time.

Arbitrator Southern upheld the Union’s grievance with respect to the cost of the tests. She found that the Employer should bear the cost of rapid tests for multiple reasons, including that rapid tests were analogous to a required “safety item” under the Collective Agreement for which the Employer had agreed to pay. However, the Arbitrator found that the time required to take a rapid test was not a significant enough demand on an employee’s personal time to warrant compensation.

Accordingly, the Arbitrator declared the aspect of the policy requiring employees cover the cost of rapid testing to be invalid and ordered the Employer to compensate the employees affected by making them whole with respect to those expenses.

Read the decision here…

Earl's Industries -and- Marine Workers and Boilermakers Industrial Union, Local No. 1 (National Truth and Reconciliation Day Grievance)

The Union grieved the Employer’s failure to recognize National Truth and Reconciliation Day, observed on September 30, as an additional statutory holiday pursuant to the Collective Agreement.

The Arbitrator agreed with the Union’s argument that National Truth and Reconciliation Day satisfied the language in the Collective Agreement in that it was “generally celebrated in the area.” The evidence established that the holiday enjoyed wide acceptance and celebration within a geographical area relevant to the Employer. As a result, the Arbitrator held that employees who worked on National Truth and Reconciliation Day were entitled to the same conditions as the statutory holidays listed in the Collective Agreement, including eight hours holiday pay at straight time plus double time for work on that day.

Read the decision here >>

CMAW, Local 506 Marine and Shipbuilders v. Vancouver Shipyards Co. Ltd (“P.Q.” Grievance), 2021 CanLII 138047

The Union grieved the imposition of a 10-day suspension for refusing a drug and alcohol test and the requirement to attend an IME.

The arbitrator held that in the circumstances, including the Employer’s automatic imposition of a 10-day suspension in every case of a positive test or refusal to test, a 6-day suspension was appropriate. On the IME issue, the Arbitrator emphasized that such exams are “extremely invasive” and before initiating one, an employer must inquire into less intrusive methods of obtaining information, and must only seek information that is reasonably necessary, which it had not done here. The Grievor was awarded $5000 in privacy damages.

Read the decision here>>

Telus and Telecommunications Workers Union United Steelworkers, Local 1944 (unreported)

On the merits portion of this case, we successfully argued that the Employer had created a new job and underpaid the employees doing the work in that job. This decision addresses the remedy.

The employer wanted to deduct certain incentive payments from the calculation of the extra wages that they were owed on the theory that “if we had known we had to pay that much in wages, we never would have paid them all this incentive money, we would have paid them far less in our incentive program".

The arbitrator agreed with us that the Employer’s position was speculative and that they could not deduct these monies.

The result was a difference of over $400,000, with the final tally being $740,000.

This was the largest monetary award that the Union had ever achieved for its members. They describe this victory on their website at this link: https://usw1944.ca/articles/concierge-arbitration-win?fbclid=IwAR2BudEvCvhliPFqKulOE-6iEBEimXwBlWBAPGfar7Q1LCmvQqXCGQEoe4A

Read the decision here >>

Providence Health Care (St. Paul’s Hospital) v. Health Sciences Association of British Columbia (unreported)

Lindsay A. Waddell and Natasha L. Edgar successfully represented the Union in this grievance. The Employer had denied the grievor’s request for Special Leave, after she travelled to visit her imminently palliative father on a day that she was booked on Union Leave. In denying her request for Special Leave, the Employer failed to comply with the mandatory language of the Special Leave provision in the Collective Agreement. The Arbitrator agreed that the mandatory language of the Special Leave provision would require specific language prohibiting its application, that the Employer had failed to comply with the requirements of the Special Leave provisions of the Collective Agreement and granted the grievance.

View case here>>