UBC v KELLY — BRAR AND OTHERS v B.C. VETERINARY MEDICAL ASSOCIATION AND OSBORNE (No. 22) — DAVIS v SANDRINGHAM CARE CENTRE AND ANOTHER.
Ever since the Supreme Court of Canada redefined the human rights analysis and most importantly the “duty to accommodate” (“DTA”) in 1999, human rights cases have become an increasingly large percentage of my practice.  That is not necessarily good for employers.  But employers may benefit from a recent decision of the British Columbia Supreme Court.  The Court allowed UBC’s appeal (judicial review petition) in part by striking down the Human Rights Tribunal’s (“Tribunal”) decision to award Dr. Carl Kelly $75,000 for “injury to dignity, feelings and self-respect”.   Unfortunately the Court’s decision left intact the findings on liability and a substantial damage award.  The Tribunal has issued two other decisions that will continue to plague employers regardless of the size of the operation.

In addition to reviewing three important cases, my summary offers seven insights and suggestions that might help your organization minimize the risk of facing a human rights complaint.

 

$75,000 for Hurt Feelings Too Much   UBC v Kelly 2015 BCSC 1731 

Dr. Kelly became a resident in UBC’s Family Medicine Residency Program whereby he had a dual status as student and employee.  Dr. Kelly had been receiving treatment for ADHD.  UBC attempted to accommodate Dr. Kelly’s disability.  However despite those attempts it concluded Dr. Kelly lacked the necessary basic skills and was unable to demonstrate that he could meet the standards required.   As a result on August 23rd 2007 Dr. Kelly was dismissed from the Program on the basis of unsuitability and the loss of his status as a student necessarily resulted in his loss of employment.  Dr. Kelly filed his human rights complaint on February 19th 2008.

On February 23rd 2012 the Tribunal issued its decision on the merits of the claim and found UBC was liable to Dr. Kelly.  It found he established a prima facie case of discrimination as his disability was “a factor, if not the sole factor, in the adverse treatment”.  The Tribunal found that Dr. Kelly had not been accommodated to the point of undue hardship.  UBC then reinstated Dr. Kelly prior to the hearing on remedy.

On December 17th 2013 the Tribunal issued its decision on remedy.  The Tribunal ordered UBC to pay Dr. Kelly $385,194.70 as compensation for lost wages.  While that award is itself extraordinary, the real damaging blow for employers was the Tribunal’s decision to award Dr. Kelly $75,000 for injury to dignity, feelings and self-respect (all of which is likely nontaxable in the hands of Dr. Kelly). This was more than double the highest previous award for such injury which was $35,000.

Not surprisingly UBC sought judicial review of the Tribunal’s decisions on the merits/liability, the wage loss and the $75,000 award.

On September 24th 2015 (over 8 years after Dr. Kelly had been dismissed from the Program and his employment) the BCSC issued its decision on the judicial review application brought by UBC.  The bad news for employers is that the Court upheld the Tribunal’s decision on the merits.  In my view it is difficult to accept the second guessing on the accommodations which were made by the UBC Sub Committee responsible for the professional oversight of Dr. Kelly, given the Sub Committee’s very difficult task in balancing the interests and assessing the circumstances.  Yet the Court rejected the arguments made by UBC in this regard and upheld the Tribunal’s decision that there had been insufficient accommodation.  The Court also upheld the Tribunal’s decision to award significant wage loss to Dr. Kelly.

However the Court agreed with UBC and found that the $75,000 award for injury to dignity, hurt feelings and self-respect was excessive and patently unreasonable, and therefore that decision of the Tribunal was set aside.  Since there was more than one possible result here the Court decided to remit the matter of the damage award back to the Tribunal for assessment.

This decision in respect of the damage award for injury to dignity, hurt feelings and self-respect is at least on its face a very good decision for employers.  If the awards for injury to dignity, feelings and self-respect had continued to escalate then likely more and more complaints would be asserted and more of them would be pursued all the way through to a hearing.

But examined more closely this victory for employers is not as favourable or definitive as the business community had hoped for.

First as noted the Court simply punted it back to the Tribunal for assessment in light of the unique factual findings it made,  namely,  that there was nothing here that was “unique” in Dr. Kelly’s injury nor any basis to find that such an award was “reasonably proportionate” to his injury.  And the Court left it wide open for the Tribunal to award more than the previous highest award of $35,000 stating:

“I refrain from suggesting that Dr. Kelly’s award for this injury should not be more than $35,000.  It may well be that a higher award than the previous high is appropriate in the circumstances of this case.”

It may well be that UBC and Dr. Kelly settle this matter and we may never know what the number set by the Tribunal on reconsideration would have been.

Secondly the Court was quick to point out that there are examples of awards of more than $35,000.  However it found that those cases dealt with issues such as “harassment of a female, mental anguish and punitive damages.”  It proceeded on the basis that “the previous highest award for discrimination on the basis of mental and/or physical disability is $35,000” (emphasis added).  This significantly limits the application of this case.  In cases of severe sexual harassment for example the sky may still be the limit for these non-taxable damage awards.  For example the Ontario Human Rights Tribunal awarded over $220,000 for injury to dignity, feelings and self-respect to two temporary foreign workers who were repeatedly sexually harassed (one received $150,000, the other $50,000).

So while employers may be comforted in this “victory” it may not be as significant as it appears at first blush.  And the more unsettling part is the Court’s decision to uphold the Tribunal’s findings on liability.  This type of decision may put a chilling effect on administrators responsible for certifying professionals who may feel intimidated by the prospect of the Tribunal second guessing their bona fide assessments and accommodations.  Finally there is no good news for employers in the Court’s decision to uphold the huge wage loss award, which was generated in large part by the length of time in proceedings before the Tribunal and the time passing until the Tribunal’s decision on the merits, for a total period of almost 5 years of wage loss.

 

356 day hearing = 2000 page decision  Brar and others v B.C. Veterinary Medical Association and Osborne (No. 22) 2015 BCHRT 151

Readers of the Weiler Law newsletters and blogs as well as attendees at my seminars will have heard of the horror stories in some human rights cases that go on for a long time and/or involve significant legal fees and costs.  On October 8th 2015 the Tribunal issued the Brar decision in what has to be the “mother of all cases” in terms of length of process and hearing dates and legal costs.  The Brar decision is nearly 500 pages long and has 1601 paragraphs.  It is also accompanied by a 1500 page Appendix setting out, among other things, the number and specifics of the 356 hearing days, the 21 previous formal Tribunal interlocutory decisions, the various oral interlocutory decisions issued and a review of some of the evidence involving members of the BCVMA Council, the evidence of persons in the Registrar’s office as well as a myriad of other witnesses. (*Note that the writer has not read the entire 2000 pages of the Brar decision and Appendix.  I will leave that to the parties to the litigation.  It would seem that reading the entire Brar decision and Appendix and advising on any potential judicial review might itself take the time of some hearings before the Tribunal.  A full analysis of the Brar decision and Appendix will have to wait for another day.  Anyone wishing to review the Brar decision or the Appendix can find both on the B C Human Rights Tribunal website.)

The case dealt with the complaints of a number of Indo-Canadian veterinarians born and trained in either India or the Punjab.  They practiced or hope to practice as veterinarians at low-cost clinics in B.C. They claimed discrimination in the provision of service customarily available to the public, publication contrary to section 7 of the Code, and their membership in the Association contrary to section 14.  As well they claimed that the Respondents retaliated against them contrary to section 43 of the Code.

The Tribunal summarized the nature of the complaint as follows:

“Generally, the allegations made in the Complaint break into two categories and the evidence related to these two categories was heard during two separate periods. First, the Complainants alleged that the BCVMA discriminated against them based on the enumerated grounds listed above when it imposed an English language proficiency requirement, which was unreasonably high, in order to be licensed. The Complainants alleged that this requirement was imposed to limit the number of foreign-trained veterinarians that could be registered with the BCVMA (the “English Language Standard”). Second, the Complainants alleged they were treated differently in how their disciplinary complaints were processed and the penalties imposed. Within this broad category, they alleged that the BCVMA discriminated against them in the manner in which they made statements and published information about them. The specifics of the allegations are set out in the relevant sections of this Decision.”

The complaint was allowed in part.  The Tribunal found, inter alia, that the BCVMA had engaged in systemic discrimination and within this context there were specific instances of discrimination against individual complainants and that the BCVMA had retaliated contrary to Section 43 of the Code.  The Tribunal issued a number of remedial orders including lost compensation and certain out of pocket costs.  Finally, the Tribunal awarded compensation for injury to dignity, hurt feelings and self-respect.  In this regard, the Tribunal made awards to thirteen complainants, ranging from $2,000 to $35,000 and, in all, totaling nearly $220,000.

Both parties sought an order for costs based on the other parties’ misconduct.  The Tribunal refused to make an order for costs.

One does not have to be an experienced litigator or litigant to know that the legal fees alone for the preparation for and attendance at 356 hearing dates plus court applications and  legal argument etc. would potentially run into the millions of dollars if billed at normal hourly rates.  The management time lost for both the complainants and the respondents in preparation for and attendance at the hearing must have been staggering.

The Brar decision including the remedial orders will now have to be digested and understood by all regulatory bodies thus adding another large layer of expense to doing business in BC.  What would be interesting and useful would be to consider if and how such an enormous expenditure of time, money and energy could have been avoided and what can be done to preclude such a hearing in the future.

 

Employer’s Concern for Safety Leads to $35,000 Award  Davis v Sandringham Care Centre and another 2015 BCHRT 148

The complainant was a Registered Care Aide at a psychogeriatric care facility.  She had been employed as a casual worker for one year and she also worked at another facility.  The facility at issue here was subject to a collective agreement.  Ms. Davis suffered from Post-Traumatic Stress Disorder (PTSD) due to the violence and trauma she experienced as a child.   Ms. Davis admitted to her boss that at times she “engaged in self-harm” and “she hits and bites herself and pulls out her hair.”  She had been subject to extensive medical treatment and had found methods to cope with her disability.  When she encounters a difficult day she does not come to work.  It appeared she had done remarkably well in spite of her disability.

Ms. Davis had taken two sick days September 28th and 29th 2012 because she was feeling stress due to her PTSD.  On October 2nd, 2012 Ms. Davis met with Debra Kean, the Executive Director/ Director of Care of the facility. There was a fundamental disagreement as to what was discussed at that critical meeting and events after that meeting.  Ms. Davis was sent to emergency at the hospital and was driven there by her co-worker and friend Ms. Wolf.  She was sent home without any treatment and was very upset about the meeting with Ms. Kean and as a result she was not able to immediately return to work.  The employer required she present a medical report to return to work which she did.  She had filed a grievance but subsequently abandoned it.   She returned to work briefly but found she was not wanted at work and quit.  She moved to the USA as her husband was unable to obtain a work permit in Canada.

She filed a complaint with the Tribunal against both the employer and Ms. Kean, her boss, claiming a small wage loss and damages for injury to dignity, hurt feelings and self-respect.   In October 2014, two years later, the Tribunal held an oral hearing and issued its decision October 1st 2015.

The case turned on the credibility of Ms. Davis versus the credibility of Ms. Kean, Ms. Wolf a fellow unionized worker and friend, and the Union rep Ms. Moore.  The Tribunal completely accepted the evidence of Ms. Davis and rejected the evidence of Ms. Kean and Ms. Wolf, and found the evidence of Ms. Moore unreliable.  In order to appreciate the analysis of the evidence of that one critical meeting it is necessary to review the 81 page decision in total which we will not do in this article.

Ms. Kean testified that when she met with Ms. Davis on October 2nd 2012 she was concerned about Ms. Davis’ behaviour including her recent two day medical leave.  Ms. Kean claimed she had complaints and also Ms. Wolf expressed concern and asked her to “check in” on Ms. Davis.  Ms. Kean asked Ms. Davis questions about her medical condition and her medical history and her condition.  Ms. Kean probed deeper into her condition and history of her mental status.  Ms. Kean said Ms. Davis told her things were difficult for her and that she was okay “considering she came to work compromised.”  When Ms. Kean probed Ms. Davis what she meant by “compromised” Ms. Kean testified that Ms. Davis replied:

  “I have a murderer inside of me and I don’t know when the murderer is going to get out and hurt me or hurt anyone else.”

 Ms. Kean testified that Ms. Davis made a comment that aligned her condition with the residents which created for Ms. Kean serious concern for the safety of Ms. Davis and the residents.  Ms. Kean noted that Ms. Davis’ pupils were dilated and she got a very different look in her eyes, darting back and forth and she became “diaphoretic”. Therefore Ms. Kean sent Ms. Davis to the hospital to be evaluated and seek proper treatment.  Ms. Kean said she understood Ms. Davis was ok with this.  Ms. Davis attended at the hospital and she was sent home without any treatment.  She was told she could not return to work until she provided a medical certificate.  She returned for a few shifts but she felt unwelcome and ultimately quit and found new employment.

Her co-worker Ms. Wolf testified that Ms. Davis had spoken to her on September 27th 2012 for over 1 ½ hours and during that conversation Ms. Davis was alleged to have said “she stood in front of a mirror and held a knife” and that she “had a monster inside her, she didn’t know how long she could keep it inside her from killing herself”.

Ms. Davis presented a diametrically opposite version of the meeting and her conversation with Ms. Wolf.  Of significant importance was the fact she denied making the murderer statement as alleged by Ms. Kean or the statements alleged by Ms. Wolf about the monster inside her and killing herself.

The majority of the 81 page decision analyzes in great detail the evidence of this October 2nd meeting as well as a meeting between Ms. Davis and her Union rep and Ms. Kean.  The Tribunal accepted Ms. Davis’ evidence in its entirety and rejected completely the evidence of Ms. Kean, Ms. Wolf, another unionized employee who was said to be a friend of Ms. Davis and the Union rep who attended a meeting with all the parties.  The Tribunal rejected the accuracy and truthfulness of Ms. Kean’s memo to HR confirming what was said in the October 2nd meeting as well as rejecting Ms. Wolf’s evidence of what Ms. Davis told her on September 27th.  If the evidence of Ms. Kean or Ms. Wolf was accepted then clearly Ms. Davis presented a serious safety risk on October 2nd and the complaint would have been dismissed.

The Tribunal found that Ms. Kean mistakenly believed Ms. Davis had a Dissociative Personality Disorder and therefore that, together with the intrusive interview and interrogation, led to her decision to force Ms. Davis to go the hospital.  The Tribunal found there was no safety risk and even if there was a bona fide but mistaken belief that there was a safety risk that did not justify the actions of Ms. Kean on October 2nd.  Because of these actions Ms. Davis simply felt she was not wanted and left her job.  She eventually returned to the USA in large part it appears because her husband was not legally able to get employment in Canada.

While the decision is of particular interest in terms of the assessment of the evidence, the findings of credibility, the role of the Union in this dispute including access to the grievance procedure and the ultimate finding of a breach of the Code, there is simply too much detail to briefly review.  It certainly will be used by me in my teaching seminars on methods to avoid such adverse findings of credibility and how to best prepare for a hearing.

What is particularly interesting in my view is the Tribunal’s decision on the remedy.  Ms. Davis obtained alternate employment and did not seek reinstatement.  Her wage loss was only $784.89 because she was able to quickly mitigate her damages.  But the Tribunal went on to award $35,000 for injury to her dignity, feelings and self-respect.  Assuming those damages are tax free this would have been the equivalent of 70 + times her lost wages award. The Tribunal had this to say in awarding such damages:

 “The impact of the discrimination on Mrs. Davis was, again, very significant. The evidence is that she lost her confidence that she could work as an RCA. This was her first job;  the job she chose, trained-for and performed well.

 “Due to the discriminatory treatment on October 2, she could not cope with working for about one week. She suffered extreme gut pain due to nervousness. She feared that her husband had lost confidence in her. Due to the discrimination, she felt very nervous and highly anxious. When she returned to work on November 13,  she felt unwelcomed, not wanted. She lost confidence her ability to work as an RCA.

“Respecting the totality of the relationship between the parties, Mrs. Davis felt that she was required to comply with Ms. Kean’s directions as Ms. Kean was her boss.  Ms. Kean repetitively questioned Mrs. Davis about her mental health history. Mrs. Davis was taken by surprise, as she had understood that she was meeting with Ms. Kean to be congratulated on a year of work well done, not subjected to an interview and assessment of her mental health history.

“I find the discriminatory conduct of the Respondents had an extremely destructive impact on the self-confidence and employment of Mrs. Davis as an RCA who has PTSD and who had a pristine work record. The incorrect and stereotypical perception that Mrs.Davis was a safety risk was highly damaging. In my view, an appropriate  award for the injury to Mrs. Davis’ dignity, feelings and self-respect is $35,000.”

 It is important to note that the Tribunal made the award against both the corporate employer and Ms. Kean personally.

The decision is a bit difficult to follow.  Rarely will one see the Tribunal make such clear findings that witnesses gave false evidence on critical meetings and totally accept one version versus another.  What I found somewhat odd was the lack of discussion as to why Ms. Kean and Ms. Wolf would give such false evidence.  It also seems to be curious that the documentary evidence of Ms. Kean was ignored when she reported to HR shortly after the incident that Ms. Davis had stated “there is a murderer inside of me and I don’t know when that murderer will actually kill me.”

One thing the decision demonstrates is how the evidence may be parsed by the Tribunal in this case some two years after the events and one year after the hearing.

SUMMARY

What can we learn from these 3 decisions?  Here are my thoughts:

1.    Single incidents of alleged discrimination, even involving a short term casual employee can embroil an employer in a lengthy human rights hearing that could involve a substantial award of damages.  It is frustrating for employers when a hearing takes place years later and the Tribunal finds not only that it prefers some evidence over that of other witnesses but goes on to find that the employer witnesses are not credible or to be believed.

2.    To find a violation of the Code it does not matter whether the employer intended to violate the Code or the Complainant’s rights.  Intention is irrelevant when finding a violation of the Code.  Section 2 of the Code states:

“2.  Discrimination in contravention of this Code does not require an intention to contravene this Code.”

Even well intentioned “nice guys” can finish last in a human rights contest.

3.    Although we know that $75,000 is likely too much for basic claims for injury to dignity, hurt feelings and self-respect, we don’t know what the amount should be in the UBC case.  Further we know that the UBC decision is restricted in its application to claims of mental or physical disabilities so it does not appear to apply to claims for sexual harassment for example.  Perhaps the ceiling there is $150,000 as appears to be the case in Ontario.

4.    In the Davis case we have the employer taking steps it felt were appropriate for its safety concerns and it did not terminate the complainant.  Rather it did ask for a doctor’s note which Ms. Davis provided.  In fact there seems to have been no issue that it was appropriate and indeed necessary for the employer to ask for such clearance in this case.  Yet despite this Ms. Davis is awarded $35,000 tax free damages with only a minor wage loss.  Despite the UBC decision there is very little certainty as to what is the maximum award under this heading.

5.    Damages for injury to dignity, hurt feelings and self-respect are generally non-taxable thus almost doubling the value of pursuing those claims for many complainants.  This in turn makes settlement more difficult for employers.  Witness the Davis case where the wage loss that would normally  be the bulk of a wrongful dismissal award was less than $1,000,  but the damages for hurt feelings etc. was $35,000 or the equivalent of more than $50,000 + in a comparable  wage loss award.

6.    Human rights cases can be terribly expensive and disruptive.  Consider that the legal fees in a 356 day hearing based on normal billing rates for the employer’s counsel could be in the many millions of dollars.  Add to that the cost of management time lost and the possible negative findings and precedent and you can see that this is an area of litigation you want to avoid.  But at the same time employers have to consider the precedent in settling a case that appears to have no merit.  It is expensive to fight a case over principle.  The economic realities have to be taken into account but balanced against the long term impact of indirectly admitting to a violation of the Code.  While the Tribunal has a good track record of facilitating settlements,  it is often very hard to estimate how long a hearing including preliminary matters will take so it is difficult to know what the costs will be if you do not settle.  The uncertainty created in these cases on the amount of damages for injury to dignity, self-respect and hurt feelings simply adds to the problem.

7.    The Davis case is remarkable in its findings of credibility.  It can have a very chilling effect on the management team when the Tribunal so clearly finds senior managers are not credible and presumably intentionally gave false evidence.  Added to that is the fact that in this case the Executive Director/Director of Care was personally found liable.   Although the Union did not pursue the case, it does show how an employer may be face two challenges—one under the Code and another under the collective agreement.

Although a little bit of good news is sprinkled into the UBC decision the ultimate reality is that human rights complaints taken to a full hearing can be devastating both financially and otherwise for employers and organizations including nonprofit organizations.  In fact for some if they were ‘for profit” before the case they might turn into ‘’nonprofit” by the time all is said and done.

But you may say “Mike, we are a small or medium sized employer—the cases you note involve large government type employers or large private sector employers.  What has that got to do with me and my business?”

The answer is that all employers need to pay attention:  “How many employees does it take to have a wrongful dismissal law suit?  A WCB complaint?  A union certification drive? And of course a human rights complaint?”  Unfortunately the answer is, “One”.  The size of your organization is irrelevant (except perhaps in very limited circumstances in assessing the scope of the Duty to Accommodate).

I train my young on-ice officials by pointing out that “Experience is just how we describe our mistakes” and therefore “Mistakes are good…if we learn from them”.  Employers are better off learning from other employers’ mistakes such as seen in these three cases.  In that way your organization can take steps now to eliminate or at least minimize the risk of a Human Rights complaint.  I hope you will join us in 2016 for our presentation on Human Rights.

 

Michael Weiler practices employment and labour law including human rights and prevention of workplace harassment / bullying and independent investigations; advising on the practical and legal issues affecting private family-owned businesses; and more – see his website at www.WeilerLaw.ca .  Michael is a frequent seminar presenter and the assistant editor of Canadian Cases on Employment Law.  Michael can be contacted at mweiler@htln.com . For those who wish to receive articles, seminar notices and blog comments please contact Carolyn Weiler at cweiler@htln.com or call her at 604 408 5627.

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