By Maddie Lusk, summer law student – July 2, 2020
In every discrimination case, BC’s Human Rights Tribunal has the power to order the respondent to compensate the complainant for injury to their “dignity, feelings, and self-respect”. This is often referred to simply as an “injury to dignity” award. These awards are not intended to punish the respondent, but rather to compensate the complainant for the harm they have suffered as a result of the discrimination.
Our Awards Chart lists all of the Tribunal’s injury to dignity awards, going back some 20 years. It is updated quarterly.
Over the last ten years, the median injury to dignity award has been around $6000, and three-quarters of awards were under $10,000.
However, in recent years, the Tribunal has made several significantly higher injury to dignity awards. In fact, the Tribunal itself has confirmed that the trend in injury to dignity awards is upwards. This can create confusion for complainants, as it may be difficult to know what to ask for, and what to expect.
How Does the Tribunal Decide?
When a complainant seeks compensation for lost wages or medical expenses, that number can be calculated with relative ease. When it comes to injury to dignity awards, however, it is not as easy to quantify the impact of being discriminated against.
In deciding on an award of damages for injury to dignity, the Tribunal generally considers three broad factors:
- The nature of the discrimination;
- The complainant’s vulnerability; and
- The effect on the complainant.
- The Nature of the Discrimination
When considering the nature of the discrimination, the Tribunal assesses the severity of the discriminatory acts. While most of the Tribunal’s high awards have arisen in connection with discrimination in employment, the Tribunal has confirmed that there is no reason that awards should be higher or lower depending on the area of discrimination; just as work is fundamental to a person’s dignity, so is their housing and access to services. In fact, a complaint about a discriminatory publication represents one of the highest awards to date. Ms. Oger was awarded $35,000 when the Tribunal found that Mr. Whatcott had discriminated against her by distributing a transphobic flier intended to expose Ms. Oger, a trans woman, to public hatred and contempt.
Further, the duration of the discrimination may not always correlate with higher or lower awards. In Campbell v. Vancouver Police Board (No. 4), 2019 BCHRT 275, Ms. Campbell – an Indigenous woman – was awarded $20,000 when she was discriminated against by the police in an encounter that lasted 20 minutes. When Ms. Campbell witnessed her son and his friend being arrested, she attempted to get information from the police. Almost immediately, the police physically removed her and threatened her with charges of obstructing justice. In deciding the award, the Tribunal acknowledged that, notwithstanding the brevity of the encounter, Ms. Campbell’s experience was “intense”, “serious”, and “rendered her powerless to ensure her child’s safety.”
- The Complainant’s Vulnerability
In assessing a complainant’s vulnerability, the Tribunal considers the personal factors and circumstances that make them more or less susceptible to the impacts of the discrimination they experienced.
In Biggings obo Walsh v. Pink and others, 2018 BCHRT 174, for example, the Tribunal noted that Ms. Walsh, the complainant in a tenancy discrimination complaint, was “extraordinarily vulnerable”. Due to her ALS, she relied on others for nearly all of her daily needs. Because of the discriminatory actions of her landlords, Ms. Walsh was unable to access her apartment safely, independently, and with dignity for a number of years, when she had a limited time left to live. The Tribunal ultimately awarded her $35,000 for injury to her dignity.
The Tribunal will also consider the advantages that each complainant has in making this assessment. In Smith v. Mohan (No. 2), 2020 BCHRT 52, the Tribunal noted that Ms. Smith was a teacher with advanced education and had access to a housing advocate. However, the Tribunal went on to say that this did not negate her vulnerability as an Indigenous woman, a single mother, and a tenant when dealing with discrimination by an experienced landlord. Ultimately, she was awarded $20,000 for the derogatory and discriminatory comments made to her by her landlord about Indigeneity and his refusal to let her smudge in her apartment.
- The Effect on the Complainant
In assessing the effect of the discrimination on the complainant, the Tribunal will evaluate the severity of the harms the complainant has suffered as a result of the discrimination. Where the effects of the discrimination are particularly harmful to a complainant’s wellbeing, the Tribunal may find that this warrants a more substantial injury to dignity award.
In Fernandes v. City University of Seattle in Canada and another (No. 2), 2020 BCHRT 116, the Tribunal offered some insight into how it may assess these effects. While the Tribunal acknowledged that Mr. Fernandes’s experience of being discriminated against based on his mental disability was humiliating, it also noted that he was not disabled from working or education, disconnected from his relationships, or in need of professional help or medication to assist in his recovery. Under these circumstances, the Tribunal did not accept that he was particularly “seriously impacted” by the discrimination he experienced. He was awarded $17,500 for injury to his dignity.
In Benton v. Richmond Plastics, 2020 BCHRT 82, on the other hand, Ms. Benton indicated that as a result of the discrimination she experienced based on her mental disability, she began to isolate herself, experienced depression, and contemplated suicide. Only after a year, and obtaining counselling, did she begin to recover. Here, the Tribunal accepted that Ms. Benton had been severely affected by the discrimination she experienced based on her mental disability and she was awarded $30,000 for injury to her dignity.
When considering the effects of the discrimination on the complainant, the Tribunal recently noted in MP v. JS, 2020 BCHRT 131, that the impact of discrimination will always be subjective. In that case, the complainant was sexually assaulted by her employer and was later diagnosed with depression, stopped working, and retreated from her family and community. The Tribunal rejected her employer’s argument that there was insufficient proof that the discrimination had caused the depression. Instead, the Tribunal accepted the complainant’s own description of the impacts of the incident and awarded her $40,000.
While every complaint is different, the Tribunal also considers awards it has made in similar complaints in the past. However, while previous decisions are useful, the Tribunal is not bound to follow them. In Araniva v. RSY Contracting and another (No. 3), 2019 BCHRT 97, for example, the Tribunal found that Ms. Araniva had been verbally sexually harassed by her employer. In considering the three above factors, the Tribunal noted that the effect of the harassment on Ms. Araniva, a single mother, was “extreme”: she lost her only source of income, and the experience made her fear for her life and her daughter’s safety.
Ms. Araniva sought a $40,000 injury to dignity award, relying on three Tribunal decisions that had resulted in injury to dignity awards of $22,500, $25,000, and $50,000. The latter two had involved physical harassment and sexual assault, while the former involved verbal sexual harassment. One might have expected that the Tribunal would make an award in the lower range for Ms. Araniva, as the harassment she had been subjected to was less severe. However, the Tribunal agreed with the complainant that $40,000 was appropriate and that, given recent trends, an older complaint involving similar facts and a lower award may not undermine a later claim for a higher award, even if the discrimination was somewhat less severe.
The Tribunal has also acknowledged the role of inflation in determining injury to dignity awards. In a recent case, the Tribunal pointed out that the inflation rate for the Canadian dollar over the past decade has averaged 1.5% per year. What this means is that, taking into account the average annual inflation rate, $10,000 in 2010 is equivalent to about $11,608.51 in 2020.
While injury to dignity awards may be increasing, there is no guarantee that every new complainant will receive a larger injury to dignity award than the last. In a recent decision, the Tribunal emphasized that it must find an amount that will compensate the specific complainant for the effects of the discrimination and take into account any existing Tribunal awards that share similarities with the complaint, while also accounting for the increase in Tribunal awards.
Ultimately, the Tribunal will always base their decision on a highly contextual and fact-specific inquiry. While similar cases can provide a helpful starting point, every complaint is different. The amount awarded will depend on the individual complaint, the seriousness of the discrimination, and the characteristics and circumstances of the person bringing the complaint forward.
See our Awards Chart for more information on previous cases and injury to dignity awards.
 Human Rights Code, RSBC 1996, c 210, s 37(2)(d)(iii).
 Biggings, above note 3.
 Fernandes at para 142.