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Difference between revisions of "BC Human Rights Code (6:III)"
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==== d) Employment Standards Branch ==== | ==== d) Employment Standards Branch ==== | ||
Employees may choose to file a complaint through the Employment Standards Branch (ESB) self-help kit if their employer has breached the ''Employment Standards Act'' (see [[Foreword_on_Employment_Law_(9:I) | Chapter 9: Employment Law]]). There is a six-month limitation period from the date of the breach and once a complaint has been filed with the ESB, the complainant is barred from initiating a court action on the same matter. Remedies awarded by the Employment Standards Tribunal are intended to make the employee “whole” financially by way of compensation rather than reinstatement. If the complainant is seeking reinstatement they should consider pursuing the issue through the Human | Employees may choose to file a complaint through the Employment Standards Branch (ESB) self-help kit if their employer has breached the ''Employment Standards Act'' (see [[Foreword_on_Employment_Law_(9:I) | Chapter 9: Employment Law]]). There is a six-month limitation period from the date of the breach and once a complaint has been filed with the ESB, the complainant is barred from initiating a court action on the same matter. Remedies awarded by the Employment Standards Tribunal are intended to make the employee “whole” financially by way of compensation rather than reinstatement. If the complainant is seeking reinstatement they should consider pursuing the issue through the Human Rights Tribunal. It is important to note though, that the ESB does not deal with alleged discrimination. | ||
p6- | ==== e) Civil Action ==== | ||
A final option is to bring a civil action for wrongful dismissal either in Small Claims Court (see [[Foreword to Small Claims (20:I) | Chapter 20: Small Claims]]) or BC Supreme Court, depending on the amounts claimed. However, a recent Supreme Court decision clarified that the common law will not provide a remedy for discrimination per se in the employment context. Please refer to ''Keays v Honda'', 2008 SCC 39 at para 67 [''Keays'']. | |||
The court in ''Keays'' held that breaches of the HRC must be remedied within the statutory scheme of the ''Code'' itself. So even if the reason for dismissal was discriminatory, in a civil action, the complainant will generally only be able to recover damages based on an unjustified dismissal and/or inadequate notice (severance pay). See [[Foreword on Employment Law (9:I) | Chapter 9: Employment Law]]. Accordingly, compensation for the discrimination itself must proceed before the Tribunal. | |||
The court may further compensate the complainant in a civil action if the employer has acted unfairly or in bad faith when dismissing an employee. The basis for these additional damages is a breach of the implied term of an employment contract that employers will act in good faith in the manner of dismissal (i.e. payment for such damages can be deemed to have been in the contemplation of the parties at the formation of the contract). In ''Keays'' the Supreme Court held that any such additional award must be compensatory and must be based on the actual loss or damage suffered by the employee, which can include expenses related to mental distress stemming from the manner of dismissal. Compensable conduct might include, but is not limited to, attacking the employee's reputation at the time of dismissal, misrepresentations regarding the reason for the dismissal, or dismissal meant to deprive the employee of a pension benefit or other right such as permanent status. However, normal distress and hurt feelings arising from the dismissal itself are not grounds for additional damages. | |||
The courts are even more conservative in their approach to awarding punitive damages meant to punish the employer for their conduct in dismissal. Punitive damages will only be awarded if the employer’s conduct was harsh, vindictive, reprehensible, malicious and extreme in its nature. Thus, if the complainant is primarily concerned with being compensated for injuries to their dignity and/or denouncing their employer’s discriminatory behaviour, then they should file a complaint with the Human Rights Tribunal alongside a civil action for wrongful dismissal. | |||
Whatever procedural route an employee ultimately chooses, if an employee is experiencing on-going harassment on a prohibited ground of discrimination, he or she should maintain records or a journal with dates, times, places, witnesses, details of particular incidents, and even a description of the emotional effects of the harassment. | |||
== D. Remedies == | |||
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 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. Clients seeking advice on crafting should be directed to The B.C. Human Rights Tribunal website, which provides detailed information on the availability and applicability of specific remedies (see [[Governing Legislation and Resources for Human Rights (6:I)#B. Resources | Section I.B:Resources]]). | |||
'''Pecuniary 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 complainant 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. | |||
Remember, to claim any type of damage you must be sure to lead evidence. If you fail to lead strong evidence as to the effect discrimination had on your emotional state and dignity, the Tribunal may not find any damage. Failure to mitigate one’s losses can lead to the loss of a complainant’s entitlement to wage loss compensation provided that the respondent is able to prove that the complainant has failed to mitigate his or her losses. Refer to ''Cassidy v Emergency and Health Services Commission and another (No3)'', 2009 BCHRT 110 at para 34. | |||
There is no maximum limit on damage awards. Note however that if a complainant 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 award or the other 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''. | |||
Although the pecuniary remedies available under the HRC are meant to be compensatory in nature, not punitive, s 37(4) does give 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 complainant 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 complainant 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 a client is dissatisfied with the Tribunal’s decision (see [[Review of Provincial Court and Tribunal Decisions for Public Complaints (5:I) | Chapter 5: Public Complaint Procedures]]). | |||
== E. Costs == | |||
The general rule is that costs will not normally be awarded in a human rights case. However, pursuant to s 37(4) of the HRC, the purpose of awarding costs has been to penalize a party who acts improperly during a hearing, thereby interfering with the objective of the Tribunal. In these cases costs are awarded punitively and do not necessarily reflect the actual expenses suffered by the other party due to the improper conduct. | |||
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