Thieven v Sherlock Clothing Limited, 2023 AHRC 9 (Oshionebo) is a new Alberta Human Rights Tribunal decision where discrimination on the basis of physical disability was found and $30,000 in general damages for pain and suffering was awarded.
This case is important because there are not many cases in Alberta with general damages for pain and suffering as high as $30,000, but there have been several recently and it looks like a trend to higher damages.
Facts
The following are the pertinent facts summarized by the Alberta Human Rights Tribunal:
- The complainant was employed as the Manager of a store location of Sherlock Clothing Limited for about 6 months when she was demoted to the Associate Manager
- The complainant has a physical disability called Crohn’s disease, and was alleging that the demotion was due to Crohn’s symptoms she was suffering from at the time:
- She became ill in a meeting as a result of Crohn’s
- Shortly after that meeting, a “General Manager” was hired, and the complainant was demoted as soon as the GM started
- The complainant heard the GM and another employee talking, and one of them had said the employer was going to terminate the complainant’s employment
- About a month after her demotion, she was presented with a “corrective action plan” to improve performance
- When the complainant was given this, she was told it was due to her lack of energy and motivation, and her lateness coming into work
- The complainant refused to sign it
- The day after being presented with the corrective action plan, the complainant resigned and sued, alleging discrimination
Analysis / Conclusion
Tribunal Member Oshionebo considered whether Crohn’s disease was a factor in the complainant’s demotion. The Tribunal found that the employer was aware of the complainant’s Crohn’s disease. The tribunal found that the demotion and Corrective Action Plan were in part due to “lack of energy” of the complainant. The tribunal found that this was one of her symptoms of Crohn’s disease, and concluded that the complainant’s disability was at least a factor in her demotion and Corrective Action Plan.
The AHRT concluded that the employer had not accommodated the complainant to the point of undue hardship, and that the demotion was discrimination on the basis of physical disability.
In consideration of general damages for pain and suffering, the tribunal noted that it was required to take into account the effect the discriminatory conduct had on the complainant. In this case, the complainant suffered greatly, even to the point of contemplating suicide. The tribunal awarded $30,000 in damages for pain and suffering, which is at the high end of what has historically been awarded in Alberta.
My Take
This case is important because it is one of a series of human rights decisions in the last two years with pain and suffering damages at the top of the historical range in Alberta.
I think this is a trend towards higher pain and suffering awards.
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