Here's a question for you: How many employees do you need before you have to start worrying about potential actions under federal or provincial human rights legislation? One? Ten? One hundred?
The answer is “yes.”
You don't have to be a provocative journalist or even a publisher to feel the sting of a human rights action. Nor do you have to be an edgy comedian like Guy Earle, who is currently in the news because of a complaint filed against him and the (now defunct) comedy club he worked at for a heckling incident with a patron. You don't even have to be an airline trying to accommodate a passenger who takes up two seats on a plane where one is the norm.
Human rights actions aren't just for the front pages of the newspaper any more. Actions under human rights codes across Canada are a force to be reckoned with. If the BC Human Rights Tribunal is any guide, all you have to do is fire an employee who is absent from work for an extended period of time due to a medical disability by email and you could find yourself paying damages of $35,000 (not including legal fees) for “hurt feelings” because the employee was not terminated in person.
This is why actions under human rights codes are no longer the domain of journalists, comedians and interest groups with an axe to grind. If your business has employees, you have to be just as concerned about a human rights complaint being filed against you as a wrongful dismissal action.
Most claims under human rights legislation are actually made by employees against their employers for something that may have arisen during the course of their employment or at the time they're terminated. The claim will normally be that an employer discriminated against an employee due to the employee's sex, sexual orientation, race, colour, political or religious beliefs, marital or family status, physical or mental disability, place of origin or age, because these are the grounds cited in most human rights codes in Canada. And employers have to realize that conditions such as depression can be a disability. But note that each act in Canada differs in terms of the “prohibited” grounds of discrimination.
As well, the federal legislation will apply to employees of federal works such as airlines, banks, ports and telecommunications companies regardless of what province the aggrieved employees work in.
“Human rights complaints are now replacing union certification drives and wrongful dismissal actions as major costs and impediments to businesses, especially small and medium sized businesses” says Vancouver lawyer Mike Weiler, who practices employment and human rights law. “The B.C. Human Rights Tribunal has been particularly active in expanding the remedies available to complainants even where there has been no substantive breach of the Code” he says. “The B.C. Human Rights Tribunal has even ordered the complainant's legal fees be paid by the respondent employer although the tribunal's jurisdiction to even make such an order is still in question and will likely be litigated in the courts,” he notes.
And legal fees can become very significant. The University of British Columbia sought to recover $150,000 in legal costs incurred by it from a complainant and her lawyer after UBC successfully had the complaint dismissed. And in this case, the Human Rights Tribunal hadn’t even commenced an actual hearing into the merits of the complainant’s case. Those whopping legal fees dealt with preliminary matters only.
In another claim, a complainant returning to her job after being away for a maternity leave alleged that her employer discriminated against her on the basis of sex and family status starting after the employee’s return to work. This matter resulted in three preliminary applications, 15 days of hearings, the combined hourly rates of two lawyers on each side and a 259-page decision where the employer was forced to pay $20,000 in damages, $10,000 of which was for "damages to dignity." But this would have been a fraction of the legal fees incurred in the process.
Finally, a case involving the B.C. government and its union over the termination of a BC Liquor Store manager in 1998 for theft of liquor demonstrates how out of control things can become in this area. The union argued that the fired employee should be reinstated and “accommodated” because his theft of booze was really a function of his alcoholism, and his alcoholism was a medical condition covered by the Human Rights Code.
Ten long years after instigation of the claim, the B.C. Court of Appeal decided, in 2008, what many would feel was obvious—the employee was really terminated because he stole, not because he was an alcoholic. Ultimately, the employee's dismissal was upheld. But clearly, if a claim like this had been brought against a small or medium-sized business in the private sector instead of a provincial government, it's doubtful such a business could have withstood 10 years of hearings (and the 10 years of legal fees that went along with defending the claim).
“Perhaps one of the more disconcerting consequences of this explosion in human rights litigation,” Mr. Weiler notes, “is the uncertainty that small and medium-sized businesses face in trying to organize their affairs to comply with their ‘duty to accommodate'" disabilities, including conditions such as depression.
What's the solution?
“Education seems to be the only way to protect a business from a complaint,” Mr. Weiler says. “You have to know how these claims can arise, know what your rights and obligations are, and do what you can to accommodate the complainant, unless, of course, it's an unreasonable hardship to your business.”
That, and never, ever terminating an employee by email, it seems.
Special to the Globe and Mail
Vancouver franchise lawyer Tony Wilson is the author of Buying A Franchise In Canada – Understanding and Negotiating Your Franchise Agreement and he is ranked as a leading Canadian franchise lawyer by LEXPERT. He is head of the Franchise Law Group at Boughton Law Corporation in Vancouver and acts for both franchisors and franchisees across Canada, many of whom are in the food services and hospitality industry. He is a registered Trademark Agent, an Adjunct Professor at Simon Fraser University and he also writes for Bartalk and Canadian Lawyer magazines.