BC Human Rights Tribunal makes historic damages award to victim of racial harassment – but leaves him to swallow high legal costs

  • February 8, 2021
  • Laura Lepine

On January 28, 2021, the BC Human Rights Tribunal awarded a former corrections officer nearly $1 million in damages for the racial discrimination he experienced in the workplace.

The decision marks the highest general damages award from the BC Tribunal. It comes just over 1.5 years after the Tribunal found that Levan Francis, a Black man, experienced discrimination in employment on the grounds of race and colour, as well as retaliation.

Mr. Francis, a corrections officer for fifteen years, described a poisoned environment wherein he was stereotyped as “slow” and “lazy”. A coworker, aware that Mr. Francis had complained of bullying for his race, sarcastically remarked that Mr. Francis had to do something “’cause you’re black” – another referred to him using racial slurs. Complaints to management resulted in slow, cursory investigations, followed by Mr. Francis being singled out for discipline.

After filing his human rights complaint, Mr. Francis was called a “rat” by colleagues and told that he “had a target on his back”. Ultimately, the discrimination Mr. Francis experienced led to his need to leave the workplace.

For its part, the Province argued that Mr. Francis was claiming racism as a way of shielding his poor work performance from scrutiny.

In its 114-page decision on the merits, the Tribunal found that the Province failed to recognize the “complex, subtle, and systemic nature of racism in any workplace”. It noted that, while most witnesses for the Province testified that they had not witnessed any racism at the facility, many of these same witnesses acknowledged that racial slurs were prevalent in the workplace: “indicative of a workplace culture that downplayed the very incidents that Francis raised as discriminatory”.

Despite the finding that he was subjected to systemic racism in the workplace being made in July 2019, it was not until recently that Mr. Francis learned how he would be compensated for his experience. In its January 28 decision, the BC Human Rights Tribunal awarded Mr. Francis $176,000 in damages for injury to his dignity, feelings, and self-respect, the highest award in the BC Tribunal’s history. It recognized that “injury to dignity” awards are meant to make complainants whole, and noted that the discrimination Mr. Francis experienced was serious, “struck at the core of Francis’ identity and feelings of self-worth and emotional well-being”, and significantly impacted Mr. Francis in that he because unable to work. The Tribunal relied on A.B. v Joe Singer Shoes Limited, 2018 HRTO 107, a bakerlaw case in which the Ontario Human Rights Tribunal made its highest to date general damages award, $200,000. You can read the A.B. decision here (link) and read more about bakerlaw’s human rights practice here (link).

The Tribunal further awarded $264,060 for past loss of earnings, $431,601 for future loss of earnings arising from his inability to return to work because of his mental health diagnoses triggered by the discrimination, pension loss of $65,881, $1,140 for counselling expenses, and $25,515.24 for disbursements, bringing the total compensation to $964,197.

In a separate decision, the Tribunal declined to award Mr. Francis’ request for $250,000 to cover his legal expenses associated with the proceeding. The Tribunal found that it did not have jurisdiction to order reimbursement for legal expenses, unless a party had engaged in “improper conduct during the course of the complaint” or contravened a rule (an exception found at section 37(4) of the BC Human Rights Code: there is no equivalent provision in Ontario’s human rights legislation). Mr. Francis argued that a lack of costs meant a lack of access to justice (and unfairness to litigants who cannot afford counsel); however, the Tribunal found that it did not have jurisdiction to award costs either on the grounds of the Charter equality guarantee or for policy reasons.

As bakerlaw’s David Baker commented to CBC News’ Yvette Brend, this demonstrates how the human rights system can leave complainants vulnerable. Respondents run up costs without concern – Mr. Francis’ case, for example, ran for 12 days of evidence, featuring 16 witnesses for the government, and just 5 for the complainant. It took 9 years from the filing of the complaint until the decision on remedy.

Leaving aside the awards related to lost wages and his inability to return to work, Mr. Francis’ sought legal costs were about $74,000 higher than the general damages for pain and suffering he ultimately received. In other words, he paid more in legal fees than he was awarded to compensate for the impact the discrimination had on him. This failure of the human rights system to account for the high costs to complainants to bring their issues forward is a serious barrier to complainants, and could result in important issues not being heard.

Bakerlaw’s focus on accessible justice seeks to address this very problem. We keep our overhead low and try to work with clients to keep our legal fees accessible so our client’s can focus on resolving their legal issues. You can learn more about our approach here (link).

You can read the BC Human Rights Tribunal’s decision on the merits of the case here (link), its decision on legal costs here (link), and its decision on damages here (link).

You can read CBC News’ account of the case, featuring comments from David Baker, here (link).

Have you experienced racial discrimination in your workplace? Bakerlaw may be able to help. Contact us here (link).

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