Huge damage award to employee highlights problems in legal system

Sunira Chaudhri

Sunira Chaudhri

Toronto Employment Lawyer

How can everyday people access costly legal representation when there is no hope of recouping any of the expense?

In May 2021, I told you the story of Levan Francis and his $964,000 award at the British Columbia human rights tribunal.

 

Francis worked as a corrections officer at the North Frasier Pretrial Centre for 15 years. He faced racial slurs like being called a “lazy Black man” by a supervisor. He heard other officers of colour being denigrated as well, including being called the N word. He also endured physical attacks.

 

Management failed to take Francis’ complaints seriously. They either were slow to investigate his complaints or did not investigate his complaints at all. The tribunal found that Francis was regarded by management as playing the “race card” in order to gain leverage. When his employer failed to remedy the dysfunction, Francis filed a human rights complaint to the B.C. human rights tribunal in 2012.

 

Francis was, by all accounts wholly successful at the tribunal including an award of $176,000 for injury to dignity; an amount that was unprecedented in the province.

 

While an almost $1 million award is something to celebrate, Francis’s case was long, drawn out and cost him dearly. Francis’ case first went to hearing in 2019 to determine if discrimination occurred. The hearing was 13 days, and 10 witnesses were called. Another 10 days of hearing ensued in December 2020 and January 2021 to determine the appropriate remedy.

 

Twenty-three days of hearing is expensive. The Human Rights Tribunals in British Columbia does not allow applicants to be compensated for their legal fees. Mr. Francis incurred approximately $250,000 in legal fees by the time his hearing was done. How can everyday people access legal representation when there is no hope of recouping any of that expense?

 

Even employees with cases of serious discrimination or sexual harassment may not be able to endure years of waiting for a hearing and all of the preparation involved to get there. Organizing documents, writing submissions and preparing witnesses requires competent counsel and, undoubtedly, some significant financial investment.

 

The other glaring issue is how long it took for Mr. Francis’ case to get to a hearing. Francis gave his evidence on his case 7-8 years after he first filed complaints against his employer. One’s recollection is not fresh after that long and usually needs to be assisted by a written record of events. While that is par for the course in a lot of cases, the job becomes much harder for an applicant to appear authentic and unrehearsed years later.

 

While COVID initially exacerbated litigation delays, it turned into a courtroom hero. Now cases can be heard virtually, which means they should be heard sooner. Documents can be uploaded to courthouses and witnesses can be sworn in over screen.

 

Levan Francis’ case is a watershed moment for the Canadian legal system. As more and more employees are facing tenuous workplace challenges, barriers must come down for their cases to be heard, and on time.

 

On to your questions from this week:

 

Q. I am enrolled in a profit share plan at my company. I usually get notified that my profit share is between $15,000-$20,000 a year. I get paid the full amount after three years, with a third getting paid to me each year. My company is talking about layoffs. I am wondering what will happen to my profit share if I am terminated?

 

A. Your entitlement to profit share could depend on the terms of your employer’ profit share plan, if one exists. Otherwise, you may be entitled to further payouts even if you are terminated. Even if your company’s profit share plan denies that you are eligible for payment, you may have legal entitlements that survive beyond your termination. If you are terminated and your termination letter is silent to payouts on your profit share, speak up, as you may be owed significant compensation.

 

Q. I was laid off from my job in 2020 due to COVID. I expected to be called back. I have followed up at least three times and I still haven’t heard from my employer. I see they are even hiring now. Is there anything I can do?

 

A. Due to the infectious disease emergency leave (IDEL), some employers have extended layoffs beyond what normally would be permitted under the Employment Standards Act. That said, if you are not being called back despite repeated requests to return and a clear indication your employer is hiring, you may be able to seek damages, including at the least your minimum statutory entitlements.

 

Have a workplace issue? Maybe I can help! Email me at sunira@worklylaw.com and your question may be featured in a future column.

 

The content of this article is general information only and is not legal advice.

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