In Senyk v. WFG Agencies, Ms. Senyk, a commercial insurance sales person, complained to the BC Human Rights Tribunal that her former employer discriminated against her on the basis of physical and mental disability contrary the Human Rights Code.
Ms. Senyk was in her late 50’ and had worked for the employer for more than 30 years. She alleged, first, that managers harassed her between 2000 and 2004, creating a toxic work environment, resulting in a physical and mental breakdown in the spring of 2004. She went on medical leave. Second, she complained that the employer discriminated against her in 2006 when it terminated her employment.
The Tribunal found in favour of Ms. Senyk on the second allegation. WFG terminated Ms. Senyk in the spring of 2006, while she was on medical leave, and in receipt of long-term disability benefits (LTD). The employer chose to terminate her by way of email. The email noted that she had been absent for two years and that the employer could no longer guarantee her a position if and when she was able to return to work. Early in her absence, Ms. Senyk’s clients had been reassigned to other agents and these had, given the passage of time developed relationships with the clients.
The employer did not, in making the decision to terminate Ms. Senyk, did not make inquiries as to the possibilities of her returning to work. The employer knew that she continued to receive LTD and assumed that she remained totally disabled. The employer acted upon the belief that, after an employee had been absent for two years, the employer was free to terminate employment. However, there was evidence before the Tribunal, which it accepted that Ms. Senyk wanted to return to work when she was well enough to do so. The termination had a serious impact on Ms. Senyk’s health, although the Tribunal was not in a position to make a conclusive finding. The termination did not affect her LTD payments.
The employer’s position was that Ms. Senyk’s employment contract was frustrated because of the employee’s inability to return to work due to disability. Terminating an employee for disability related reasons is prima facie discriminatory. The question then becomes whether the employer has fulfilled its duty to accommodate. The Tribunal accepted that a two-year absence is a lengthy, but not sufficient to frustrate the contract, given her length of service, 34 years. Moreover, the Tribunal considered that the employer contributed o her becoming ill and going on a leave, as well as its aggressive workplace culture. The employer did not contact Ms. Senyk to warn her that her employment was in jeopardy, giving her an opportunity to provide medical evidence with respect to her condition. As well, the Tribunal was not impressed with the method of termination, email. Finally, there was little cost to WFG of continuing to employ her. In the circumstances, WFG failed to establish a justification for the termination.
The Tribunal did not order lost wages to Ms. Senyk, as she had been unable to work for medical reasons. She could not, therefore, establish a wage loss. The Tribunal refused Ms. Senyk’s request for common law reasonable notice. Such remedy is only rarely available in a human rights complaint, except perhaps, where a complainant is rendered incapable of working as a result of the respondent’s discrimination.
Ms. Senyk requested $50,000 on account of “injury to dignity, feelings and self-respect.” The Tribunal rejected her reliance on common law cases ordering increased, aggravated and punitive damages. The remedies under the Human Rights Code are meant to be remedial in nature, not punitive. However, the Tribunal considered that she was especially vulnerable at the time of termination. The termination had significant effects on Ms. Senyk’s health and, over time, worsened her depression, anxiety and likely her drinking problem. In two previous cases from 2007, the Tribunal awarded $20,000 and $25,000. In this case, the Tribunal found that an award of $35,000 was appropriate.
Ms. Senyk also requested legal costs, estimated at $40,000. In the past, the Tribunal has ordered, fairly limited costs, without reference to a party’s actual costs, and on the basis of a party engaging in improper conduct in the Tribunal’s process. In this case, the Tribunal noted that the case involved the presentation of sophisticated and extensive legal submissions. WFG is a large enterprise, represented by effective counsel. Exert evidence was required. Witnesses were subject to extensive cross-examination. The Tribunal noted that it would be “unrealistic to expect that any but the most exceptional of self-represented parties to have been able to effectively address the factual and legal issues raised in this case.” It would be “entirely unrealistic to expect some complainants to represent themselves.” The Tribunal ordered the employer to pay Ms. Senyk’s “reasonable costs.” The Tribunal retained jurisdiction to determine the actual amount of reasonable costs if the parties failed to agree.
There is a question whether the cost award would be upheld on judicial review. The cost award is largely based on decisions of the federal Human Rights Tribunal and the Federal Court under the Canadian Human Rights Act and different statutory language. It does not deal satisfactorily with the differences in the statutory language such as the express power to award costs for “improper conduct in the course of the complaint” (s. 37(4)(a)). Moreover, the decision ignores section 47 of the Administrative Tribunal’s Act, which expressly provides for the power to award “costs … in connection with an application.” The B.C. legislature expressly excluded the Tribunal from exercising that power. Presumably the legislature could have given the Tribunal this power had it wanted to do so.
However, in two more recent cases, the Federal Court of Appeal and the BC Human Rights Tribunal have had the opportunity to deal wit the issue of costs.
In the Attorney General of Canada v. Mowat and the Canadian Human Rights Commission, 2009 FCA 309, the court concluded that the language of the Canadian Human Rights Act did not include the power to award costs. Noting that the term “costs” is a legal term of art, an expression that though usage by legal professionals, has acquired a distinct legal meaning, and that the power to award costs must be founded upon express statutory language, the court concluded that “compensate … for any expenses … as a result of the discriminatory practice” did not include the power to award legal costs. The court reviewed the Commission’s practice and decisions and, as well, compared the language of the statute to that found in various provincial statutes.
In Kerr v. Boehringer Ingelheim (Canada) Ltd., 2010 BCHRT 62, the BC Tribunal concluded that the employer had discriminated against Ms. Kerr and found that the appropriate remedies included wage loss compensation and $30,000 for compensation for injury to dignity, feelings and self-respect. Ms. Kerr also sought legal costs, partly, not surprisingly relying on the decision in Senyk, discussed above.
The employer opposed costs, arguing that the BC Human Rights Code itself provides no basis for an award of costs; the Administrative Tribunals Act – legislation dealing with, among others, the powers of administrative tribunals such as the BC Labour Board and the Human Rights Tribunal – denied the Tribunal the power to award costs; the Human Rights Tribunal does not have inherent jurisdiction (like the courts) but only the jurisdiction given to it by the legislation; and, of course, the Federal Court of Appeal’s decision in Mowat.
The decision in Kerr was that the Tribunal does not have the jurisdiction to award legal costs for the cost arising after the filing of the complaint. While the employer’s submissions in this case against the Senyk approach are very compelling and sound in law, ultimately, won the day, the Tribunal may well find some backdoor way to award costs.