Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice, and provides Kelowna Capital News with weekly stories from the world of local, national and international law. (Contributed)

Kootnekoff: Landmark Human Rights Decision: Francis v. BC Ministry of Justice

Susan Kootnekoff is the founder of Inspire Law, her diverse legal career spans over 20 years

The BC Human Rights Tribunal recently awarded its highest injury to dignity award yet. The recipient was an employee who experienced race-related discrimination at work.

The case was heard in two stages.

First, the Tribunal decided if discrimination had occurred. In July, 2019, the BCHRT issued that decision, Francis v. BC Ministry of Justice (No. 3). That hearing was 13 days long. It included 10 witnesses and 9 days of evidence.

Then, the Tribunal determined how to attempt to remedy the discrimination. That involved another 10 hearing days plus written submissions. The BCHRT recently released its remedy decision, Francis v. BC Ministry of Justice (No. 5). It awarded Mr. Francis $964,000 in damages, of which $176,000 was for injury to dignity.

Facts

The complainant, Mr. Levan Francis was a corrections officer at the North Fraser Pre-trial Centre.

He believed he was being discriminated against on the basis of race and colour.

He was stereotyped as being lazy and slow. His supervisors singled him out. He was called a “lazy Black man.”

When he tried to report his concerns, he was belittled. He was labeled as sensitive and manipulative.

He filed a human rights complaint in 2012.

After that, he was called a “rat.” One of his supervisors reported him to management. He received unjust reprimands.

Experiences such as these caused his physical and mental health to decline.

Eventually, in July, 2013, after almost 15 years, he went on medical leave. He did not return. He had trouble accessing disability benefits.

His children and family experienced significant financial and emotional hardship.

After toiling for 6 years, the decision finding he was discriminated against was finally issued.

Remedy decision

In its remedy decision, the BCHRT stated that a “violation of a person’s human rights is a violation of their dignity.” The purpose of an injury to dignity award, “is to compensate the complainant for the actual harm they have suffered as a result of the discrimination.”

These awards are intended to address injury to the person’s dignity, feelings, and self-respect. It is based on the nature, extent, and impact of the discrimination and the person’s vulnerability.

The Tribunal found that Mr. Francis had experienced “virtually the entire spectrum of racial discrimination and harassment in the workplace.”

That included express racial slurs, stereotyping, unjust criticism, and retaliation.

The impact on him was “extreme.”

This justified an injury to dignity award that is more than double the previous highest award. Before Mr. Francis’ case, the highest injury to dignity award in BC was $75,000. That award was made in University of British Columbia v. Kelly (No. 4).

In Kelly, UBC had dismissed the complainant from his position as a resident in its post-graduate family medicine training program. He complained to the BCHRT, which found that UBC had discriminated against him based on learning disabilities. Its award included the $75,000 injury to dignity award.

Upon judicial review, the Supreme Court of British Columbia set aside the injury to dignity award. However, on appeal, the Court of Appeal for British Columbia restored the BCHRT’s award.

Injury to dignity awards, in B.C. and across Canada, are trending upward. There is no cap on the amount which can be awarded.

Justice

I have previously written about how winning a landmark case does not necessarily equate to justice for the person involved. Sometimes, despite a huge legal win, justice remains elusive.

Mr. Francis’ battle took more than 8 years of his life. It cost him more than $250,000. It severely impacted his mental health.

His said that his experiences “destroyed him as a human”.

He is now 51. He lost his career. He lost his home. He suffers from severe depression and PTSD. Much of this is a result of his experiences at work.

Lawyers for the province of B.C. fought his case, and hard, for years.

Mr. Francis is reported to have said he was disappointed that the people he believes were responsible have not been held to account, and that the province fought his case for so long, trying “so hard to derail this.”

“I am so disappointed in Canada. … I’ve done nothing wrong.”

In at least some legal battles, especially those in which the stakes may be high, the government of B.C. does at times adopt a no-holds barred approach, completely losing sight of the impact on the individual involved.

When a province pulls out all the stops, battling an individual who is experiencing severe injustice, it ought to pay dearly for doing so.

Awards like this may be only the beginning.

If justice is truly to be served, it is essential that awards such as this fully recognize the severe impacts on the individual involved.

In case you missed it?

2019 new directions report on B.C.’s WCB

AboutSusanKootnekoff:

Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. Photo: Contributed

Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. Photo: Contributed

Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children.

Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law.

She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, Alta.

Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013,

Susan moved to the Okanagan with her family, where she currently resides.

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