Posts Tagged ‘Human rights’

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Departing from Previous Cases – A Step in the Right Direction

The British Columbia Human Rights Tribunal recently awarded $75,000.00 as general damages, signalling that human rights damages are on the rise – and it’s about time.

In Kelly v. University of British Columbia (No. 4), Adjudicator Enid Marion, considered a case in which Kelly, who possessed a medical degree, was unable to complete his medical residency at the University of British Columbia and was ultimately terminated from the program, in part due to his disabilities – ADHD and a non-verbal learning disability. Due to his termination from the program, Kelly found it very difficult to find other work. After all, why would someone with a medical degree be looking for jobs other than physician positions?

In an earlier decision, the Tribunal found that UBC had discriminated against Kelly and failed to accommodate his disabilities. As a result, he was reinstated into the residency program, approximately six years after he had been terminated. In the decision on remedy, the Tribunal ordered lost wages for what Kelly would have earned had he been accommodated in the first instance. Over a six year period, this amount totalled $385,194.70. This should not be surprising to anyone. Human rights remedial principles are intended to make those experiencing discrimination “whole”, or to put them in the position they would have been in had they not experienced discrimination. Physicians earn significant incomes. Kelly’s full income potential was delayed by approximately six years and this amounted to a large lost wages award.

The true significance of this decision however is the high general damage award – $75,000.00 for injury to dignity, feelings and self-respect. The Tribunal stated at paragraph 101:

…it is relevant and principled to consider that Dr. Kelly was pursuing an almost life-long desire to become a physician and that the loss of that opportunity had a serious and detrimental impact on him, particularly within the context of his family dynamics. (His father was a physician and Kelly intended on working with him). Dr. Kelly suffered deep humiliation and embarrassment as a result of the discrimination, which was ongoing for a significant period of time. He experienced symptoms of depression, including a lack of interest in life, trouble sleeping, and other health-related problems.

There is no question that the general damage award in this case departs from  the general trend in human rights. General damages in Ontario typically range between $10,000.00 to $20,000.00 (with the majority of decision-makers awarding $15,000.00). There will be those who argue that a $75,000.00 award, well above the average, is uncalled for in a case where Kelly was reinstated into the program, successfully completed it and became employed as a physician. While many will criticize the decision for departing from the established trend and previous cases, perhaps it is the established trend and previous cases that should be criticized.

$10,000.00, $15,000.00 and $20,000.00 cannot be said to be more than a “slap on the wrist” for most large organizations. Admittedly, it is difficult to quantify the harm caused by discrimination, but awards should not be so low that they are seen as a licensing fee to discriminate. General damages should adequately compensate those who have experienced discrimination. Larger awards like this one will certainly impact companies and frankly, they should. Maybe employers will think twice in the future and start to take human rights more seriously.

We can only hope that Ontario will follow suit and move away from the unwritten $15,000.00 standard. In the last year, Ontario has signaled that it may be willing to follow British Columbia’s lead (see Fair v. Hamilton Wentworth District School Board, 2013 HRTO 440 where the Ontario Tribunal ordered $30,000.00 in general damages).

Citation

Kelly v. University of British Columbia, 2013 BCHRT 302 (Click here for a full copy of the decision)

Businessman

Employers can be liable for reprising against an employee who makes an allegation of discrimination in the workplace – even if the allegation is unfounded.

The Human Rights Tribunal of Ontario recently released its decision in Morgan v. Herman Miller Canada Inc. Aldeen Morgan worked for Herman Miller Canada Inc. from 2007 until 2010. Morgan alleged that his employer had discriminated against him on the basis of his colour by assigning him demeaning tasks, inappropriately disciplining him and ultimately firing him for complaining about the mistreatment he had been experiencing.

Vice-Chair Geneviève Debané found that Morgan had failed to establish that his employer had discriminated against him on the basis of his colour. The allegations of discrimination were unfounded, however Vice-Chair Debané found that Morgan genuinely believed his employer had infringed his Code rights.  Debané found that Herman Miller had failed to address the complaint, and rather terminated Morgan because of his allegations. In doing so, Debané found that Herman Miller had reprised against Morgan contrary to the Code and ordered in excess of $70,000.00 in damages.

This decision has received substantial criticism because the decision “awards significant human rights damages to an individual who had not been discriminated against in any way”. It has been called “disturbing” in a recent article by an employment lawyer. Another blogger stated:

In our time, this is what “human rights” has come down to …. punishing his employer not for treating him unfairly, but for refusing to kowtow to his threats…

Protecting employees who raise genuine concerns in the workplace related to human rights is not disturbing. What would be disturbing, in my opinion, is to allow employers to terminate employees who genuinely believe they have experienced discrimination in the workplace and who have had the courage to come forward and voice their concerns. Employers have a duty to investigate. In the absence of malice or ill intent in making the complaint, employees should be protected from reprisal. Vice-Chair Debané came to the proper conclusion in this decision.

Case Citation: Aldeen Morgan v. Herman Miller Canada Inc. and Corrado Fermo, 2013 HRTO 650