Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Employment law – Remuneration – Remedies – Damages – Human rights complaints – Sexual harassment – Judicial review – Standard of review – Correctness
J.J. v. School District No. 43 (Coquitlam),  B.C.J. No. 710, 2012 BCSC 523, British Columbia Supreme Court, April 12, 2012, P.D. Leask J.
The Petitioner, J.J., was employed as a painter with the Board of School Trustees of the Respondent School District (the “District”) for nine years, ending in 2005. The Petitioner worked during the summers in each of the nine years.
In 2006, the District offered her continued employment if she signed a document confirming the terms and conditions that applied to her ongoing employment. She refused and she was no longer working with the District after that point. The document related, in part, to the degree of her supervisory authority when she was working. She felt she had been a lead hand and was therefore entitled to a retroactive increase in pay for some of her jobs dating back to 2002. The District felt she had little supervisory authority for those years.
The Petitioner made a complaint of sexual harassment to the District in May 2006. The District conducted an internal investigation and concluded she was not harassed. The Petitioner then filed a complaint with the BC Human Rights Tribunal, alleging she was discriminated on the basis of sex.
The Tribunal found the District had discriminated against her when it decided not to hire her as a continuing casual worker in November 2005. The Tribunal awarded damages for wage loss for three different time periods. The Tribunal also ordered the District to refrain from discriminatory behaviour, to pay the Petitioner’s hearing expenses, and to pay her compensation for the injury to her feelings, dignity, and self-respect.
The Tribunal refused to order the District to implement the ameliorative programs requested by the Petitioner. The Tribunal also refused to grant a retroactive increase in pay for 2002-2005 because that decision was not related to her sex. The Tribunal also refused to order compensation for the time period after the Petitioner failed to mitigate her losses by deciding not to continue employment in March 2006. The Petitioner appealed these refused remedies to the BC Supreme Court.
The Court held the Tribunal’s decision about retroactive pay and ameliorative programs was within the range of reasonable outcomes.
The Court held that correctness was the applicable standard of review when considering the Tribunal’s decision about the Petitioner’s failure to mitigate. The Court then reviewed the case of Evans v. Teamsters Local Union No. 31, 2008 SCC 20, where the Supreme Court of Canada (SCC) held that a dismissed employee sometimes had an obligation to accept an offer of re-employment. In Evans, the SCC held that a critical factor was whether the employee would be returning to an atmosphere of hostility, embarrassment, or humiliation.
The Court held that the Tribunal did not appear to consider whether the Petitioner’s relationships would be acrimonious, or whether the work atmosphere would be hostile or embarrassing. The Tribunal should have considered these factors and required the District to prove, on a balance of probabilities, that the work environment was not hostile or embarrassing. This was particularly important given the Tribunal’s finding that the Petitioner was sexually harassed. It was also important because the District, in its internal investigation, had not acknowledged any sexual harassment.
The Court further noted that there was no agreement between the parties about the terms of the re-employment in issue. The Court held the Tribunal erred in accepting that the Petitioner acted unreasonably in refusing re-employment.
The Court then considered the Tribunal’s finding relating to reinstatement. The Court felt this finding was also flawed because it was based on the findings related to the failure to mitigate.
The Court ordered the matter be remitted to the Tribunal to decide the quantum of damages for lost wages. The Court ordered the Tribunal to reconsider whether the Petitioner should be reinstated. The Court ordered the District to pay the Petitioner’s costs.
This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at firstname.lastname@example.org or review his biography at http://www.harpergrey.com.
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