Despite an employer's legitimate basis for terminating an
employee's employment, it will often find itself a
respondent to a human rights complaint following termination. The
costs for employers to defend a human rights complaint can be
very high and, unlike in the courts, the B.C. Human
Rights Tribunal does not have jurisdiction to
order unsuccessful parties to pay the successful party's
legal fees. However, in exceptional circumstances, the Tribunal has
a limited jurisdiction under the Human RightsCode to make punitive costs awards for "improper
conduct" that impacts the integrity of the Tribunal's
The Tribunal found such circumstances to exist in the case of Ma v. Dr. Iain G. M. Cleator and another. Kim
Ma worked in the respondent doctor's clinic as an office
assistant for a number of years. She eventually took an extended
maternity leave and, when she returned to the workplace, found that
a significant number of processes and operations had changed in her
absence. Ms. Ma resisted the changes and was in immediate conflict
with the new office manager. Despite efforts to make it work, Dr.
Cleator found the employment relationship was unworkable and
terminated Ms. Ma's employment, providing her pay in lieu of
notice, approximately one month after her return.
Ms. Ma filed a complaint with the Tribunal alleging that Dr.
Cleator had discriminated against her on the basis of sex
(pregnancy), family status and mental disability. After ten days of
hearing, the Tribunal concluded that the entirety of Ms. Ma's
complaint should be dismissed, finding that Ms. Ma had purposely
fabricated the basis for her complaint, lied under oath, altered or
created false evidence and knowingly misled the Tribunal.
Based on its limited jurisdiction, the Tribunal took the rare
step of making a punitive order for $5,000 in costs against
Ms. Ma. Although the award is much less than what respondents
usually expend to defend themselves against a human rights
complaint, it is at the highest level in light of previous case
We often advise employers of the unfortunate reality that costs
are not available in human rights tribunals in any jurisdiction in
Canada, even when an employer is completely successful and a
complaint is found to be completely without merit. Many calls have
been made for reform of provincial human rights legislation -
not just in British Columbia. Our colleagues in Ontario previously
posted on a private member's bill in Ontario that
sought to amend human rights legislation to provide the
Ontario Human Rights Tribunal with jurisdiction to order costs.
Although Ontario Bill 147 passed first reading in December 2013, it
has since died following the dissolution of Ontario's
legislative assembly for a provincial election.
While we are not holding our breath for amendments to British
Columbia's Code permitting the Tribunal to award costs
against unsuccessful parties in the foreseeable future, the
introduction of Bill 147 in Ontario provides some encouragement
that legislatures are at least aware of the challenges faced by
respondents to human rights complaints and that some
politicians are willing to takes steps to address them.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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