'If you're not paying attention, you could end up with a big exposure on your hands': employment lawyer on increasing HRT awards
A January 18, 2024 B.C. Human Rights Tribunal (HRT) decision has raised the bar on awards to claimants who have suffered injury to dignity, feelings and self respect, with an award of $100,000 being the second highest ever such award in B.C.
As one employment lawyer explained to HRD, the amounts HRT adjudicators award to aggrieved employees will likely continue to increase. It’s a further reason employers need to be extra cognizant of the conditions of a termination, as well as treating all discrimination or harassment claims very seriously.
“In terms of Human Rights Tribunal cases that involve sexual harassment or sexual assault, this was definitely the highest award for injury to dignity that we've ever seen,” said Chris Drinovz of KSW Lawyers in Surrey, B.C.
“It's part of a general trend that we've seen with human rights cases, both in British Columbia and in Ontario, of increasing damages awards for injury to dignity, whether it's sexual assault or really any type of discrimination. They've been inching upwards over the past 10 or 20 years, where we used to think, you know, $25,000 was a big award, and now that's becoming more the average, and we're seeing these much higher awards of $75, $100, $175,000.”
HRT found claimant discriminated against due to disability, sex
The highest award ever awarded by the B.C. HRT for injury to dignity was $175,000 in the case of a prison guard who was subjected to extreme discrimination and open racism from both colleagues and supervisors, resulting in significant financial loss and physical and emotional injury.
This latest decision involved an employer who sexually, physically and emotionally abused and assaulted his personal executive assistant over her almost two years of employment with him. The adjudicator found in her decision that the employer, Sydney Richard Hayden of Clear Pacific Holdings Ltd. and Whitehawk Investments Ltd. – both vehicles for Hayden’s business dealings – used his position of power as both a man and her employer, to use his assistant’s sex and her substance use disorder as a means to manipulate and essentially force her to continue working for him.
“The nature of the discrimination was extremely serious. It was ongoing over a 21-month period and included sexual and physical assault, as well as rampant sexual harassment, and emotional and economic abuse,” the adjudicator wrote in her decision. “Physical assault is in the same category. The discrimination ultimately resulted in the loss of Ms. L’s employment and – for some period – her ability to work in any capacity. Because of the significance of employment to a person’s dignity, cases which involve the termination of employment have often attracted the top end of this Tribunal’s awards.”
The decision also pointed out the “profound” power imbalance between Ms. L and Hayden.
Hayden’s actions violated section 13 of the Human Rights Code, the adjudicator found in her decision.
In addition to the $100,000 award in damages for injury to dignity, Hayden was ordered to pay the claimant, referred to as “Ms. L” in court documents, $61,541.90 for lost wages and $8,699.84 for legal fees. Hayden did not defend against the claim, nor did he appear at the trial, but the adjudicator was able to reach a decision based on evidence provided by Ms. L, including texts, emails, and testimonies from a psychologist and her father.
Higher workplace sexual harassment awards
In comparison to the large awards for discrimination in the U.S., which are often tried in front of juries and can see awards of millions of dollars going to claimants, Canadian human rights tribunals’ financial awards are significantly smaller. They are also generally lower than cases involving wrongful dismissals or personal injury in Canadian courts.
“Relatively speaking, the average awards have been low from the tribunal when you compare them to the courts … if this case went before a jury in the United States, it would be a $50-million award,” said Drinovz.
“I think the tribunal is kind of sensing that they're way behind, as far as what the courts are doing, and in British Columbia the tribunal is looking at Ontario and seeing some of the much higher awards, and slowly inching upwards to get more in line with the rest of the jurisdictions.”
What to do in the case of HRT claim?
It’s a matter of limited resources that have contributed to a backlog in HRT trials that was exacerbated by the COVID-19 pandemic, Drinovz said. The backlog has also contributed to potentially larger wage compensation.
“These cases are very backlogged, so it could take a couple of years to get to the tribunal,” he said. “So there's potential that the employer could be on the hook for all of the lost wages that the employee has, from the date of the discrimination up to the time of the hearing if the employee is unable to find alternative work. So that backlog creates this huge potential for massive wage loss awards.”
Although the case involving Hayden is an extreme circumstance, all employers should be cognizant of risk of litigation any time they process terminations, Drinovz said. Many employers are so focused on complying with employment standards by giving appropriate notice, vacation pay and severance pay for example, that potential human rights violations can slip by without notice.
“Do you have a potential human rights claim because you've terminated someone on medical leave, or you've terminated someone who's been sexually harassed, or you haven't investigated a complaint that's been brought to your attention? All of those things fall within the jurisdiction of this tribunal because it relates to human rights,” Drinovz said.
“So if you're not paying attention to those things, you could end up with a very big exposure on your hands.”
