Difference between revisions of "BC Human Rights Code (6:III)"

Remedies should be considered first when deciding whether or not to pursue a claim in any administrative tribunal. Available remedies for a justified complaint are listed in s 37(2) of the HRC.

Non-pecuniary (Not Financial) remedies include: an order that the respondent cease the discriminatory conduct; a declaratory order that the conduct complained of is, in fact, discriminatory; and an order that the respondent take steps to ameliorate the effects of the discrimination such as the implementation of human rights policy and training. People seeking advice on drafting should be directed to The B.C. Human Rights Tribunal website, which provides detailed information on the availability and applicability of specific remedies (see Section II.B: Resources).  

Pecuniary (Financial) remedies include: compensation for lost wages/salary or expenses, re-instatement of a lost benefit, and compensation for injury to dignity. Unlike severance pay, compensation for lost wages is not based on the concept of reasonable notice. A successful claimant may recover lost wages for the entire period between their dismissal and the hearing date if they can show that they have been making reasonable efforts to find new employment. Damages awarded for injuries to dignity have increased over the last decade. Currently the highest award in BC is $75,000, but that case is being judicially reviewed. Most damages in this category are under $10,000. It is difficult to predict what level of damages the tribunal will award as it depends on many factors on a case by case basis. Importantly, while insult to dignity commonly follows in cases where discrimination is established, this is not guaranteed, as in Holt v Coast Mountain Bus Company, 2012 BCHRT 28, at para 233.  

Remember, to claim any type of damage the claimant must be sure to lead evidence. If the claimant fails to lead strong evidence as to the effect discrimination had on their emotional state and dignity, the Tribunal may not find any damage. Provided that the respondent is able to prove that the claimant has failed to mitigate his or her losses, the failure to mitigate one’s losses can lead to the loss of a claimant’s entitlement to wage loss compensation. Refer to Cassidy v Emergency and Health Services Commission and another (No 3), 2009 BCHRT 110 at para 34.

There is no maximum limit on damage awards. Note however that if a claimant seeks a remedy in both the Human Rights Tribunal (e.g. for lost wages) and in civil court (e.g. for severance pay) and are successful in both proceedings they must forfeit one of the awards, as they are not entitled to double recovery. There are several cases where the award for loss of wages was in the range of $300,000. See Kelly and Kerr supra.  

The pecuniary remedies available under the HRC are meant to be compensatory in nature, not punitive, s 37(4) gives the Tribunal authority to order costs against either party as condemnation of improper conduct during the Tribunal processes. This order is independent of a finding that the complaint is justified. Additionally, s 37(2) gives the Tribunal the right to award compensation for expenses that are directly caused by the discrimination found which may include expenses such as wage loss due to the need to attend a hearing.  

The Tribunal will not provide remedies in every situation where there has been real or perceived discrimination. For example, the Tribunal will not award damages for lost wages/salary following a discriminatory dismissal but during a period for which the claimant was medically incapable of working. Please refer to Senyk v WFG Agency Network (No. 2), 2008 BCHRT 376 at para 434. This is because even absent the discrimination the claimant would not have been able to earn wages or a salary.

A final order of the Tribunal may be registered in the B.C. Supreme Court so that it is enforceable as though it were an order of the court. No appeal procedure is provided for in the HRC, but the Judicial Review Procedure Act, RSBC 1996, c. 241 may be of some assistance if an individual is dissatisfied with the Tribunal’s decision (see Chapter 20: Public Complaint Procedures).