Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Human Rights – Discrimination – Law Societies – Barristers and solicitors – Professional governance and discipline – Admission to profession – Competence – Judicial review – Natural justice – Remedies – Damages
Gichuru v. Law Society of British Columbia,  B.C.J. No. 2552, 2014 BCCA 396, British Columbia Court of Appeal, October 16, 2014, R.J. Bauman C.J.B.C., D.M. Smith and A.W. MacKenzie JJ.A.
In October 2009, the B.C. Human Rights Tribunal found that the Law Society of British Columbia wrongfully discriminated against the complainant on the basis of mental disability in connection with his application for articles, and by way of a systematically discriminatory question concerning mental health in his application. The discrimination resulted in a ten-month delay in his call to the bar. The Tribunal awarded the complainant approximately $43,000 for wages lost due to the delay, approximately $27,000 for wages lost through to the hearing on remedies, roughly $2,700 for wages lost due to his attendance at the hearing on liability, and $25,000 for injury to dignity, feelings and self-respect. The Tribunal did not award him anything for future wage loss as it found that he did not suffer a permanent impairment to his earning capacity. In a subsequent ancillary decision, the Tribunal awarded the Law Society $3,000 in costs after the complainant had made unsupported allegations of misconduct throughout the proceedings. The Tribunal noted that it is unhelpful for any party to engage in unnecessary, inflammatory and unfounded allegations. The complainant’s comments about the Law Society and its counsel were very serious, involving allegations of fraud, corruption and filing false or misleading information with the Tribunal.
The complainant appealed the Tribunal’s decisions for a number of reasons. After his appeal was first heard and largely dismissed at the B.C. Supreme Court level, the Court of Appeal dismissed it entirely.
The complainant advanced numerous arguments before the Court of Appeal, but only two are summarized below:
- The complainant said the Tribunal acted unfairly by relying on two cases regarding the correct standard of causation that neither party had addressed in submissions. Both decisions built on a decision relied upon by the Law Society, and one of them was already available to the parties at the time of their submissions. The Court found that the Tribunal did not breach the rules of natural justice by referring to either decision.
- The complainant submitted that the Tribunal erred in concluding that he could not be compensated for injuries to dignity, feelings, and self-respect arising from the process before the Tribunal itself. The Court clarified that the Tribunal’s decision was not as broad as the complainant characterized it; rather, the Tribunal found that an award for injury to dignity, feelings and self-respect arising solely from the impact of the hearing itself could not be made. In other words, the Tribunal rejected the submission that the complaint process served as an independent factor in quantifying the award, which the Court found to be a cogent and well-reasoned decision.
This case was digested by Kara L. Hill of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact her directly at firstname.lastname@example.org or review her biography at http://www.harpergrey.com.
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