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The recent human rights litigation from transgender woman Jessica Yaniv featured one person launching over a dozen claims against various vulnerable women.
The scenario is striking because Yaniv intentionally sought out dozens of people seemingly with the intent of creating lawsuits. Very often, one can see moderate people of all political stripes losing faith in the mandate of the BC Human Rights Tribunal due to this abuse of the law.
I would argue that the issue is not with the BC Human Rights Tribunal itself, but with the perverse incentive of litigating for profit that is created by the BC Human Rights Code. The BC Human Rights Code creates this incentive through a type of damages called “injury to dignity, feelings, and self-respect.”
This head of damages is harmful to human rights law in BC. It is unfair to the defendants, and it incentivizes predatory litigation. All of this causes British Columbians to lose trust in the important role that the tribunal can play in redressing wrongs.
Section 37 of the BC Human Rights Code allows the tribunal to make an award of damages to a complainant for “injury to dignity, feelings, and self-respect”. The tribunal is permitted to award any amount for this that it sees fit.
By the admission of the Human Rights Tribunal, the awards for this type of damages is high and is “trending upwards.” For example, in the Oger v Whatcott case, Whatcott was ordered to pay $35,000 for discriminatory speech against Morgane Oger. Whatcott had made critical comments about Oger based Oger’s transgender identity. In the same case, the tribunal cited $5,000 awards as “lower” awards. Other cases have seen awards of up to $75,000.
Awards for hurt feelings are unique to human rights law. Damages awarded in every other area of law are based on the principle that the award should only make the complainant whole. A complainant should never be better off after receiving the damages award.
For example, consider if a company leased a concert hall to a business that wanted to use the space to put on a production. Imagine that business stood to make $50,000 in profit from a sold-out production.
If the rental was cancelled by the company leasing the concert hall in breach of the contract, that company would have to pay the other party $50,000, representing all of the profit the other party could have made. The other party is not better off after the award. They are only made whole.
In contrast, awards for hurt feelings undoubtedly put the complainant better off than they would have been had the human rights violation not occurred in the first place. It is self-evident that an award in the tens of thousands of dollars outweighs any injury to feelings caused by the discriminatory speech or action.
Why is it a problem to have an award that amounts to more than what the complainant actually lost? Obviously, there is the problem that it saddles a defendant with a massive financial burden that doesn’t reflect the damage that they caused. A woman starting a small business who is ordered to pay a “small” award of $5,000 dollars would likely find it ruinous.
But just as importantly, making an award that puts the complainant better off gives people a financial incentive to have their human rights violated. People respond to incentives.
Yaniv saw the incentive and responded by launching over a dozen complaints on vulnerable women. It bears repeating: Yaniv provoked people into violating Yaniv’s own alleged rights. Clearly, Yaniv recognized that the potential payout was far greater than any injury to feelings that could occur.
Every other area of law, from tenancy disputes to million dollar contract disputes, work off of the principle that damages should reflect actual losses. The BC Human Rights Code should be amended so that damages are only awarded for measurable losses suffered by the complainant.
This would mean that if a person was fired for discriminatory reasons, the award would consist of the person receiving every dollar in wages they lost as a result of the firing. The Tribunal could also make an order that the person receives their job back.
Doing so would do more than just make the awards more fairly. By changing the focus away from arbitrating feelings and towards redressing real wrongs, it would destroy the incentive for predatory litigation.
Vexatious litigants like Yaniv would have no incentive for launching dozens of lawsuits because there would be nothing for them to gain. Any award would only make the complainant whole as if the wrong hadn’t occurred in the first place.
The BC Human Rights Tribunal does have an important function to play. Unfortunately, recent events not limited to the Yaniv litigation have caused people to lose trust in the organization. By eliminating litigation in the pursuit of personal gain, the BC Human Rights Tribunal can help to redress wrongful discrimination in BC and earn back the trust of British Columbians.