Jun 1, 2019

Human Rights Tribunal: Injury to dignity awards on the rise in BC

Araniva v. RSY Contracting and another (No. 3), 2019 BCHRT 97 (CanLII)

According to a newly released decision from the Human Rights Tribunal, injury to dignity awards are trending upwards in BC.

In a May 10, 2019 decision, indexed at 2019 BCHRT 97, the Tribunal found that the complainant had been the victim of multiple unwanted sexual advances from her employer. After rejecting the sexual advances, the complainant’s hours were cut. The complainant ultimately left the workplace and never returned.

The Tribunal found that the complainant had been sexually harassed, justifying a finding of discrimination on the basis of sex. The nature of the sexual harassment was described as “almost entirely verbal”, except on one occasion when the employer touched the complaint while trying to hug her.

The effects of the discrimination were significant for the complainant. Her psychologist was called to give evidence of the degree of trauma suffered and to explain why the complainant may have been particularly vulnerable because of unrelated past events. At the time of the hearing, approximately 2.5 years after the discrimination took place, the complainant was still dealing with symptoms resulting from the harassment.

The complainant sought $40,000 in damages for injury to dignity, relying on three previous Tribunal decisions which had resulted in injury to dignity awards of $22,500, $25,000, and $50,000. But the Tribunal noted that the two higher awards had been with respect to particularly egregious sexual harassment cases. In the more comparable precedent, the Tribunal had only awarded $22,500. As a result, one might have anticipated that the Tribunal would award injury to dignity damages in or around the $22,500 range.

However, the Tribunal agreed with the complainant that $40,000 was appropriate. While the precedents cited by the complainant were only several years old, the Tribunal concluded that injury to dignity damages have trended upwards in the meantime:

Ultimately, however, I do not find that the comparison with these cases undermines [the complainant’s] claim. Those cases are now several years old. Since they were decided, the BC Court of Appeal has upheld an award of $75,000…The trend for these damages is upward.

As a result, the Tribunal accepted the complainant’s submission that $40,000 was an appropriate award for injury to dignity. The Tribunal’s decision resulted in an injury to dignity award almost double the most comparable precedent.

Moving forward, this decision may have long-term implications for injury to dignity awards in BC, particularly for complainants seeking to justify higher injury to dignity awards than past precedents might otherwise support.

Author: Brendan Harvey is an employment lawyer in Vancouver, BC practicing on the North Shore with Yeager Employment Law.