Record-Setting Damages Awarded by B.C. Human Rights Tribunal Following Racial Discrimination
May 19, 2021
May 19, 2021
Previously printed in the LexisNexis Labour Notes Newsletter.
On January 28, 2021, the former Chair of the B.C. Human Rights Tribunal, Diana Juricevic, issued her decision respecting remedy after finding that the Government of British Columbia discriminated and retaliated against a corrections officer contrary to the B.C. Human Rights Code (the “Remedy Decision”).
The complainant, Levan Francis, had been employed as a corrections officer since 2000. He filed a human rights complaint on October 25, 2012 covering alleged incidents of racism over a period of 18 months from January 2012 until his departure from the workplace in July 2013. Mr. Francis alleged that the respondent did not take his reports of racism seriously, and that colleagues and supervisors targeted him further after they became aware of his human rights complaint. Mr. Francis did not work in any capacity after he ceased working as a corrections officer, and suffered a serious mental illness which disabled him from working in any occupation.
In its July 4, 2019 decision in Francis v. B.C. Ministry of Justice (No. 3), 2019 BCHRT 136 (Juricevic), the Tribunal found that of the 32 allegations made by Mr. Francis, there were nine proven incidents of discrimination contrary to section 13 of the Code and two proven incidents of retaliation contrary to section 43. Taken together, these findings amounted to a poisoned work environment.
In the Remedy Decision, the Tribunal ordered the following financial remedies:
- $264,060 as compensation for past loss of earnings;
- $431,601 as compensation for future loss of earnings;
- $65,881 as compensation for pension loss;
- $1,140 as compensation for expenses; and
- $25,515.24 as compensation for disbursements.
In addition and most notably, the Tribunal made the largest award in British Columbia to date of damages for injury to dignity, feelings and self-respect – awarding Mr. Francis $176,000 under this head of damages. In comparison, the highest amount previously awarded for injury to dignity, feelings and self-respect in the province was in Kelly v. University of British Columbia (No. 4), 2013 BCHRT 302, where the Tribunal awarded $75,000. 
In making her award, former Chair Juricevic rejected the notion that damages for injury to dignity, feelings and self-respect are limited to those which are reasonable foreseeable. The discrimination experienced by Mr. Francis was “an exceptionally damaging affront” to his dignity which “struck at the core of [his] identify and feelings of self-worth and well-being”. It also encompassed “virtually the entire spectrum of racial discrimination and harassment in the workplace, escalated into retaliatory behaviour, and resulted in a poisoned work environment, necessitating a significant award of compensation”. Further, the nature of Mr. Francis’ work as a corrections officer exacerbated the situation and increased the amount of compensation to which he was entitled in light of the Tribunal’s finding that his physical safety was threatened by his fellow employee and supervisors upon whom he relied for safety at work. Finally, the Tribunal considered the significant mental illness which Mr. Francis had suffered due to the discrimination, and his resulting inability to continue working in any capacity.
In addition to compensation for lost wages and injury to dignity, feelings and self-respect, the Tribunal made a declaratory order that the respondent’s conduct amounted to discrimination and retaliation under the Code.
Significance for Employers
As of the date this article was written, it is unclear whether the respondent will seek judicial review of the Remedy Decision. As the remedies ordered by the Tribunal stand, this decision will affect future cases in British Columbia and perhaps other provinces in a very monumental way and will presumably be cited frequently by human rights complainants.
In the appeal of Kelly, the B.C. Court of Appeal reiterated that there is no cap on awards for injury to dignity, feelings and self-respect under the Code. The award in Francis is a stark reminder of this. The case highlights not only the duty which employers have to appropriately and adequately investigate and address allegations of bullying and harassment, including discrimination, but also the importance of ensuring that they do not take any retaliatory action against an employee who seeks remedies before a human rights tribunal or similar administrative tribunal or body.
Carrie Koperski is a lawyer with the Vancouver-based employment and labour law firm of Roper Greyell LLP. She assists employers with all aspects of workplace law. Carrie can be reached at (604) 806-3844 or email@example.com. For more information about her and the lawyers at Roper Greyell, please visit www.ropergreyell.com.
While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein. The article is for general information purposes only and does not constitute legal advice.
 This award was set aside by the B.C. Supreme Court on judicial review but restored by the B.C. Court of Appeal in University of British Columbia v. Kelly, 2016 BCCA 271.