By Jonathan Blair

In March of this year, a lawyer with the Human Rights Clinic, Dan Soiseth, represented a group of nine former employees (the Complainants) at a BC Human Rights Tribunal hearing against their former employer, Spruce Hill Resort and Spa Ltd. (the Resort) and Kin Wa Chan (together, the Respondents) [1]. On October 24, 2018, the Tribunal issued their decision finding that the Respondents discriminated against the Complainants on the basis of race and colour, and in the case of one Complainant, on the basis of sex.

The Resort has been around for decades and is situated on thousands of acres in the interior of BC. In 2015, Mr. Chan took over ownership of the Resort and in January 2016 the Resort began extensive renovations. During the renovations, Mr. Chan would remark on how much it cost to employ the Complainants, all of whom identified as Caucasian. He would make comments about how much better it would be to have Chinese employees because he could pay them less and they would not claim their statutory entitlements to overtime or vacation pay. Mr. Chan also hired new employees who were Chinese and simultaneously cut the hours of several of the Complainants. By the end of the summer 2016, all of the Complainants had been terminated, had resigned because so many of their hours had been cut, or left because the work environment had become so toxic.

This case came down to credibility. The Respondents only called one witness, Mr. Chan, and failed to provide any financial documents to back up their claim that the employment decisions were based solely on the financial situation of the Resort. In the end, the Tribunal found the version of events provided by the Complainants, and corroborated by various records they kept at the time, to be more credible. The Tribunal thus found that the Respondents had discriminated against all but one of the Complainants on the basis of race and colour, and in the case of one Complainant, Ms. Eva, on the basis of race, colour and sex.

As a remedy, the Tribunal awarded the Complainants lost wages and injury dignity on a case by case basis. The combined amount of the awards was over $170,000. However, it is the individual remedies in this case that are interesting and may provide useful precedents for two common situations.

First, this case is a good example of when lost wages can be awarded to a Complainant who was unable to work. In the case of the named Complainant, Ms. Eva, the Tribunal awarded her lost wages in the amount of $24,481.25. The lost wages award was calculated in the standard way, by comparing what the Complainant would have earned had there been no discrimination with her actual income up until the time of mitigation.

However, following her resignation, Ms. Eva had a mental breakdown and ended up in hospital for a period of time. Following her release from hospital, she took some time off, started a business, and incorporated a few months later. The award for lost wages covered all the time Ms. Eva was in hospital, was at home and even the first few months of the business venture, up until the time of incorporation. The Tribunal found that the discrimination caused the breakdown, and though her business made no profit for the first few months, Ms. Eva had adequately mitigated her loss.[2]

The general principle is that complainants are not entitled to an order for lost salary for any period during which they were medically incapable of working [3]. However, the case law has left open the possibility that a complainant could still get lost wages when they are medically unable to work if they can show that that inability was caused by the discrimination [4]. This case represents a good example of when that exception to the general principle will apply. It is worth noting that the Tribunal based this decision solely on the testimony of Ms. Eva. Though it is still advisable to provide the Tribunal with any documentation you have justifying a claim for lost wages, this confirms that no corroborating evidence is strictly required to demonstrate the impact of discriminatory conduct at a Tribunal hearing.

Second, the Tribunal awarded damages for lost wages to one Complainant, Ms. Fast, for a period of 13 months. The Tribunal considered that Ms. Fast was emotionally unable to work immediately following the discrimination, that she had worked for the Resort for almost two decades, that she lived in a remote community and could not relocate because of her family, and that she tried to get other jobs in her field but was unsuccessful.

All complainants have a duty to mitigate their losses. Though the onus is on the Respondent to prove that a complainant failed to mitigate in a particular case, Tribunals often want to see evidence of mitigation efforts from a complainant. In this case, as with Ms. Eva’, the only evidence was the Complainant’s testimony, and the Tribunal also seemed to take notice that jobs in specialized fields are limited in remote areas. The Tribunal found that the Respondent failed to prove that Ms. Fast had not fulfilled her duty to mitigate and awarded lost wages for the entire period of time from termination until she went back to school 13 months later.[5]

[1] Eva obo others v. Spruce Hill Resort and another, 2018 BCHRT 238 [“Eva obo others”].
[2] Eva obo others, at paras. 214-215.
[3] Senyk v. WFG Agency Network (No. 2), 2008 BCHRT 376, at para. 434.
[4] Senyk at para. 438.
[5] Eva obo others, at paras. 219 – 221.