Human Rights

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Ms. L v. Clear Pacific Holdings Ltd. and others, 2024 BCHRT 14

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Written by: Afifa Hashimi

Content warning: This post and the decision it refers to discuss sexual assault and violence. 

Sara Hanson and Afifa Hashimi of Moore Edgar Lyster LLP successfully represented the Complainant, Ms. L, in Ms. L v. Clear Pacific Holdings Ltd. and others, 2024 BCHRT 14. The BC Human Rights Tribunal found that the Respondents discriminated against Ms. L on the basis of sex and disability, in violation of section 13 of the BC Human Rights Code.

Ms. L worked as a personal executive assistant to the Respondents. The Tribunal found that during Ms. L's employment, the individual Respondent sexually assaulted and harassed Ms. L, withheld her wages, emotionally abused her, physically assaulted her, and abandoned her in a foreign country. The Tribunal also found that the Respondent exploited Ms. L's disability, a substance use disorder, to maintain his control over her.

In this precedent-setting decision, the Tribunal awarded Ms. L $100,000 as compensation for injury to her dignity, feelings and self respect. The amount represents the highest award of compensation for injury to dignity that the Tribunal has awarded for sexual harassment and assault to date and doubles the previous highest award for sexual harassment: PN v. FR and another (No. 2), 2015 BCHRT 60.

The Tribunal agreed with Ms. L that an award of $100,000 was appropriate. It found that the increase in comparison to previous cases was justified by the nature and lengthy duration of the discrimination, its pervasiveness in almost all aspects of Ms. L's employment, and the fact that it included physical and sexual violence. The Tribunal also considered the lifelong impact of the discrimination on Ms. L, the fact that the power imbalance between the parties was profound, and the fact that the Respondent used the power dynamics to his advantage.

 In addition to the significant award of damages for injury to dignity, the Tribunal also ordered the Respondents to pay Ms. L $61,541.90 for wage loss, and $8,699.84 for expenses, flowing from the discrimination. As a result of the discrimination, Ms. L lost her employment, her ability to mitigate her damages by looking for other work, and her ability to return to her previous vocation, necessitating that she retrain for other forms of work. The Tribunal therefore awarded past wage loss, as well as future wage loss to December 2024, when Ms. L was expected to complete her retraining.

 This decision represents a significant increase in potential compensation available for survivors of sexual harassment and assault who choose to pursue complaints before the Tribunal, or through grievance processes available to unionized workers.

 The significant injury to dignity award in this case is consistent with the Tribunal’s general upward trend in injury to dignity awards in recent years. It is encouraging to see this trend continue in order to properly compensate survivors, like Ms. L, for the impact of discrimination they experience.

Moore Edgar Lyster LLP commends Ms. L for her strength in seeing her complaint through to a hearing. In the words of Ms. L during her testimony "I never thought I would be able to get to today and be able to do this. This is for me like taking back my power and being able to tell my truth."

 Read the Decision Here…

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Gibraltar Mines Ltd. v. British Columbia (Human Rights Tribunal), 2022 BCCA 234

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Lindsay A. Waddell of Moore Edgar Lyster LLP and Heather Hoiness of the Office of the Human Rights Commissioner of B.C. successfully represented the Commissioner in an application for leave to intervene in the B.C. Court of Appeal. The appeal concerns the proper interpretation of family status discrimination under the B.C. Human Rights Code. The Chambers Justice agreed that the Commissioner has a unique and broad perspective and that her participation in the appeal on the statutory interpretation issue would be of assistance to the Court. Lindsay and Heather will also represent the Commissioner at the upcoming appeal.

Read the decision here…

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Gibralter Mines Ltd. v. Harvey, 2021 BCSC 927

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Lindsay A. Waddell successfully represented the Human Rights Commissioner for British Columbia in the Commissioner’s first application for leave to intervene since her office was created. The Commissioner sought leave to intervene in the proceeding – a petition for judicial review of a BC Human Rights Tribunal decision involving the interpretation of family status discrimination under section 13 of the BC Human Rights Code - on the basis that the interpretation of family status discrimination under the Code clearly engages her statutory mandate. Mr. Justice Gomery found that the Commissioner had a direct and obvious interest in the legal issue, and that her submissions would assist the Court. Lindsay will represent the Commissioner at the hearing of the judicial review later this month.

Read the decision here>>

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The Parent obo the Child v. The School District, 2020 BCCA 333

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Lindsay A. Waddell and Sara Hanson successfully represented the Respondent, the Parent obo the Child, in upholding the chamber judge’s decision which found that the BC Human Rights Tribunal erred by applying the incorrect legal test for determining whether the Parent could rely on lawyer advice error to allow his late-filed complaint to proceed in the public interest under s. 22(3) of the BC Human Rights Code. The Court of Appeal further agreed with the Parent’s submission that the incorrect legal test was an extricable error of law that rendered the decision as a whole patently unreasonable as defined in section 59(4) of the Administrative Tribunals Act. 

View case >

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Employee v. Employer, 2020 BCHRT 4

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In this case, Sara Hanson successfully argued that the Employer’s application to dismiss the Employee’s Complaint for having no reasonable prospect of success should be denied. The Employer argued that it had acted “objectively reasonably” in responding to the Employee’s complaint that she was sexually assaulted by her co-worker. However, the Tribunal accepted the Employee’s argument that there was very little evidence that the Employer had a suitable anti‐discrimination/harassment policy, a proper complaint mechanism, or adequate training given to management and employees. Importantly, the Tribunal also dismissed the Employer’s argument that it had fulfilled its duty to the Employee because its observations of her “day to day” demeanour suggested that she was fine, and in doing so, stated that “reliance on observations of the Employee’s demeanour harkens to harmful stereotypes about the ideal sexual assault victim who can only be believed if visibly traumatized.” 

View case >

Working on Coast Salish Territory - shared lands of xʷməθkʷəy̓əm (Musqueam), Skwxwú7mesh (Squamish) & səlil̓wətaʔɬ (Tsleil-Waututh), whom we thank for their forbearance.

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