McCharles v Jaco Line Contractors Ltd., 2022 AHRC 115 is a new Alberta Human Rights case where a complainant was awarded pain and suffering damages of $50,000.
This case provides important because this is one of the highest, if not the highest, human rights pain and suffering damages ever awarded in Alberta.
Facts
The following are the pertinent facts found by the Alberta Human Rights Commission:
- This was a complaint for discrimination on the basis of gender in employment practices, under section 7 of the Alberta Human Rights Act
- The sole director and shareholder of her employer Jaco Line Contractors Ltd., touched her breast and hip on a business trip and referring to her around the office as “Supertits”
- Just after the business trip, the complainant went on a vacation, and the day she returned from vacation the employer terminated her employment, purportedly for cause. She was not provided for a reason at the time, but several days after termination the employer said it was because of her stealing money and poor performance
- After termination of employment, the complainant filed a police report alleging she had been sexually assaulted
- The complainant alleged that the termination was motivated by discrimination
- Prior to termination of employment, the complainant had improperly taken some company money for a vacation she felt entitled to
- An Employment Standards officer found that her employment had been terminated for cause
The complainant paid back the vacation money she took improperly in order to avoid potential criminal and civil consequences.
Analysis / Conclusion
The Alberta Human Rights Tribunal adjudicator, Erika Ringseis, found that the touching of the hip and breast, and reference to the complainant as Supertits amounted to sexual harassment, which is discrimination on the basis of gender.
The AHRT also noted that although the Employment Standards Umpire found the complainant had been terminated for cause for improperly taking money from the employer, the termination came “on the heels” of the sexual harassment allegation, and the termination of employment was motivated, at least in part, on the basis of discrimination.
Where a termination of employment violates human rights in Alberta, it is possible in some cases for a complainant to receive lost wages covering the whole period of unemployment. In this case, the employer argued that damages for the whole period of unemployment would be unfair, given the proven misconduct and alleged poor performance. The AHRT accepted this argument:
[90] As the Umpire decision was not appealed or questioned, I accept that the complainant’s misconduct and poor performance in audits should be considered when determining what would be a reasonable length of employment in these circumstances. I favour the respondent’s submissions in that regard. The respondent submitted that a reasonable length of time that the complainant would have continued to work with the respondent, if there had been no discrimination, was only 30 days given the performance of the complainant and the theft that came to be known.
In the end, the employer was required to pay 30 days’ lost wages, and $50,000 in general damages for pain and suffering. The employer was also ordered to implement an anti-harassment policy and have its management take a training course in human rights.
My Take
This case certainly one of the more unusual Alberta Human Rights decisions to come out in recent memory, for a few reasons:
- First, the complainant was awarded $50,000 in general damages for pain and suffering, which is at the highest end ever awarded in Alberta Human Rights;
- Second, despite that the AHRT seemed to accept the complainant’s employment was terminated for cause, it found the termination was partly motivated by discrimination, and then awarded a small amount of damages in respect of lost wages. Outside of human rights in the civil courts, this is very similar to what used to be called “near case”, the practice of awarding partial damages where there isn’t quite just cause for dismissal. This has not been allowed in civil courts for wrongful dismissal for quite a while. This is not to say the AHRT should not have reasoned this way – it has its own discretionary process – but it is a bit unusual so I wanted to point it out.
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