Okanagan College v. Okanagan College Faculty Assn. (Fu Grievance – Damages), [2008] B.C.C.A.A.A. No. 57 (Hall)
This award sets a valuable precedent, as it is one of the few decisions in which an arbitrator has awarded damages for injury to dignity under the Human Rights Code.
Unions should be aware of the possibility of requesting these types of damages in cases involving human rights violations and consider putting the employer on notice that they will do so. They may also want to obtain medical evidence to support the claim in order to maximize the damages awarded.
On September 7, 2007, Arbitrator Hall ordered the College to reinstate Dr. Fu as a probationary instructor, conditional upon him providing a certificate of medical fitness, as he found the College had discriminated against Dr. Fu when it terminated him. The award rejected the Association’s claim that Dr. Fu was entitled to damages for mental distress. However, the Arbitrator remitted the issue of other damages back to the parties to try to settle.
The parties were unable to settle the issues of damages and made submissions to Arbitrator Hall regarding two issues: 1) general damages; and 2) damages for injury to dignity.
Regarding the first point, the Association argued that the basic purpose of a damages award is to put the aggrieved party in the position they would have been in had there been no breach of the collective agreement, provided the loss was “reasonably foreseeable”, the aggrieved party acted reasonably to mitigate the loss and the damages must be certain and not speculative. Therefore, the Union took the position that Dr. Fu was entitled to lost wages for the period from termination to reinstatement.
The College took the position that damages were too remote in this case because it alleged that there was a real and substantial likelihood that Dr. Fu would not have successfully completed probation, even if he had not experienced a period of disability.
Arbitrator Hall rejected the College’s position and stated that “it cannot be said reliably, let alone on the balance of probabilities, that Dr. Fu would not have passed probation had he been properly accommodated when the College was first informed of his diagnosis.” Therefore, he awarded that the College pay the lost wages to Dr. Fu.
Regarding the second point, the Union argued that section 37(2)(d)(iii) of the Human Rights Code grants the discretionary power to award compensation for injury to dignity, feelings and/or self respect. Further, the Union took the position that section 89(g) of the Labour Relations Code permits arbitrators to “interpret and apply any Act intended to regulate the employment relationship of the persons bound by a collective agreement”, which includes the Human Rights Code.
The College argued that the arbitrator had no jurisdiction to order this remedy because the Legislature had confined such authority to a “member or panel” of the Human Rights Tribunal. In the alternative, the College argued that Dr. Fu had not suffered any injury to dignity, feeling and/or self respect.
The Arbitrator agreed that he had the jurisdiction to award damages under the Human Rights Code and relied on evidence produced at the termination arbitration to find that there had been injury to dignity, feeling and/or self respect. Thus, he ordered the College to pay $3,500.00 to Dr. Fu for damages for injury to dignity.