Flynn v. DF Architecture Inc. (No. 2), 2025 BCHRT 81
Date Issued: April 2, 2025
File: CS-000089
Indexed as: Flynn v. DF Architecture Inc. (No. 2), 2025 BCHRT 81
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
David Joseph Flynn
COMPLAINANT
AND:
DF Architecture Inc.
RESPONDENT
REASONS FOR DECISION
Tribunal Member: Robin Dean
On their own behalf: David Joseph Flynn
Counsel for the Respondent: Robert A. Finlay
Date of Hearing: September 24-27, 2024
Location of Hearing: Videoconference
I INTRODUCTION
[1] It is trite law that accommodation is a process where the employer and the employee both have obligations. In this case, the Complainant, David Flynn, resigned from his employment with DF Architecture Inc. at the beginning of the COVID-19 pandemic after telling DFA that he felt uncomfortable with DFA’s in-office work schedule because he was immunocompromised. The question before me is whether the information Mr. Flynn gave to DFA was sufficient to trigger DFA’s accommodation obligations and, if so, whether DFA fulfilled those obligations. I must also determine whether Mr. Flynn’s compromised immune system is a physical disability.
[2] As I explain in these reasons, I find that Mr. Flynn’s immunocompromised status is a physical disability and that DFA did not fulfill its duty to accommodate Mr. Flynn, which was triggered by the information that Mr. Flynn shared with DFA. I order remedies as a result.
II Witnesses and credibility
[3] For the most part the relevant facts are not in dispute and are supported by documentary evidence.
[4] Mr. Flynn testified on his own behalf and was his only witness.
[5] The following witnesses gave evidence on behalf of DFA:
a. Ritik Babuta, a senior architectural technologist and project lead at DFA;
b. Zubin Billimoria, a senior associate and part of the management team at DFA; and
c. Jessie Arora, principal and owner of DFA.
Overall, I find the witnesses were credible. I am satisfied they testified truthfully to the best of their ability.
III Facts
[6] In this section I set out the evidence presented at the hearing and my findings of fact. I reviewed and considered all evidence that was admitted in the hearing, but I refer only to what is necessary to reach my decision.
A. Mr. Flynn’s Immunocompromised Status
[7] Mr. Flynn is immunocompromised due to medication he takes to manage his arthritis.
[8] At the hearing, Mr. Flynn introduced an August 22, 2024 letter written by his doctor. The letter says that Mr. Flynn has arthritis, a chronic, lifelong autoimmune condition that requires potentially lifelong therapy with an immune suppressing medication. Mr. Flynn testified that he has been on such a medication for the past 12 years. The doctor’s letter, which was written in preparation for the hearing of this complaint, describes the medication’s effect on the immune system as follows:
The medication works by suppressing the patient’s own immune system, thereby preventing the immune system from attacking the person’s own tissues. However because the medication works by suppressing the immune system, this effect places the user at risk of opportunistic infections that would normally be countered easily by an unsuppressed immune system. In fact, the medication comes with a box warning that includes the following statement:
Patients treated with Etanercept (Erelzi) are at increased risk for developing serious infections that may lead to hospitalization or death. (Reported infections include active tuberculosis, invasive fungal infections, bacterial, viral and other infections caused by opportunistic pathogens…).
[9] The doctor’s letter ends by suggesting that it would have been “completely reasonable, and in fact wise to work from home whenever possible” during the COVID-19 pandemic given that Mr. Flynn was taking an immune suppressive medication.
B. Mr. Flynn’s Employment with DFA
[10] On March 5, 2020, Mr. Flynn interviewed with Jessie Arora, DFA’s director and principal, and Shivani Guglani, DFA’s business development manager, for a position at DFA. During the interview, COVID-19 came up, and DFA told Mr. Flynn that they were exploring remote work options. Mr. Flynn did not mention that he was immunocompromised at the interview, nor did he discuss his autoimmune condition.
[11] On March 12, 2020, DFA offered Mr. Flynn employment as a project lead and architect. In this role, Mr. Flynn was expected to attend meetings and work sites in person. Out-of-province travel was also expected.
[12] Mr. Flynn accepted DFA’s offer of employment on March 13, 2020. Mr. Flynn’s employment would begin on March 30, 2020, and would be subject to a three-month probationary period. His annual salary was set at $110,000.
[13] On March 16, 2020, Mr. Flynn forwarded the signed offer of employment to Mr. Arora along with the following message:
….
In terms of the start date I anticipate having some further discussions with you Jessie due to the Covid19 issues that are unfolding daily. I know most of my friends and my wife are now looking at working remotely. I am set up at home with auto cad if required. This is a very odd time, I want to stress I am very excited about starting work with your firm however life as we know it seems to be changing daily!
I am open to all options at this point in time and if you want to include me on your inter office emails to let me know how things are progressing please do so. I can appreciate you will be dealing with your current employees and clients and this may be a very difficult time ahead for all of us.
[Emphasis added.]
[14] On March 18, 2020, the British Columbia government declared a provincial state of emergency in relation to the COVID-19 pandemic. At that time, the government listed essential services, which it said should remain open and operating. Those services included: “building code enforcement, inspection of buildings, building sites and building systems by building officials and registered professionals (architects and engineers)”. Mr. Arora testified during cross examination that he took this to mean that his office could remain open during the state of emergency, and he kept the office open during that time.
[15] On March 25, Ms. Guglani emailed Mr. Flynn to inform him that DFA had divided the office into two groups, working alternate days, to avoid the number of people in DFA’s studio.
[16] On March 26, Mr. Flynn received his work schedule for March 30 to May 1, 2020, from Ms. Guglani, who also informed him of the office protocol to deal with the COVID-19 pandemic. These protocols included maintaining a social distance of 1.8 metres, washing hands, and sanitizing the workstations, kitchen, and washroom after each use. The work schedule required Mr. Flynn to work in office one to two days a week with three other people in the open-concept office.
[17] Mr. Flynn spoke with Ms. Guglani on the phone after receiving the schedule. Mr. Flynn told Ms. Guglani that he was immunocompromised due to an autoimmune condition. Mr. Flynn also asked Ms. Guglani about the status of the remote work setup. Mr. Flynn expected Ms. Guglani to relay the fact that he is immunocompromised to Mr. Arora, but he did not ask that she do so. During the phone call, Ms. Guglani insisted that Mr. Flynn physically come into the office for his first day of work.
[18] On March 27, 2020, Mr. Flynn emailed Mr. Arora and Mr. Billimoria informing them “I am currently on a medication that compromises my immune system so I am feeling extra vulnerable to be honest.” This was the first time that Mr. Arora or Mr. Billimoria had heard that Mr. Flynn was immunocompromised. Neither Mr. Arora nor Mr. Billimoria responded to Mr. Flynn’s email.
[19] On March 30, 2020, Mr. Flynn attended his first day of work in office, leaving to continue working from home at around 12:30 p.m. Mr. Flynn left the office early that day because his colleagues were not observing the social distancing protocol.
[20] On Wednesday, April 1 and Thursday, April 2, 2020, Mr. Flynn worked from home, according to the schedule circulated by Ms. Guglani.
[21] On Thursday April 2, 2020, Mr. Flynn came into DFA’s offices to work. Again, social distancing protocol was not being followed by Mr. Flynn’s colleagues. Mr. Flynn left the office early to work from home.
[22] On April 2, 2020 at 3:31 p.m., Mr. Billimoria circulated a revised work schedule effective April 3. The email read:
Given the current situation with COVID-19 and the remote work coordination issues that we face. We feel that we would need to rework our work schedule to help streamline the work. Am enclosing a revised work schedule for all. These would be effective tomorrow morning – 3rd April 2020.
Would appreciate if everyone would try and adjust to the situation and work together so as to enable all of us to get through these troubled times.
[23] The new work schedule increased Mr. Flynn’s days in the office to three times a week and required him to work in office from 3 to 7 p.m., Monday, Wednesday, and Friday. Before Mr. Flynn came into the office from 3 to 7 p.m., there would be four to six other people working in the office from 7 a.m. to 3 p.m.
[24] Given the way the schedule was written, Mr. Flynn believed that there would be five people in the office with him from 3 to 5 p.m. and three people in the office with him from 5 to 7 p.m. While Mr. Billimoria and Mr. Arora testified that two of the employees scheduled from 3 to 5 p.m. on Monday, Wednesday, and Friday would not actually be in the office most days due to the nature of their work, this was not communicated to Mr. Flynn.
[25] The new work schedule did not mention sanitation protocols or cleaning. At the hearing, Mr. Arora testified that he hired cleaners to sanitize the office twice daily. However, Mr. Flynn did not know that the office was being professionally cleaned. The schedule also did not account for Mr. Arora’s, Mr. Billimoria’s, and Ms. Guglani’s time in the office. During the hearing, Mr. Arora explained that this was because their private offices were separated by a closed door from the open concept cubicles occupied by DFA’s other employees. However, during the hearing, Mr. Flynn testified that these missing details raised serious concerns for him.
C. Mr. Flynn’s Resignation from DFA
[26] At 4:56 p.m. on April 2, 2020, Mr. Flynn wrote to Mr. Arora and Mr. Billimoria in response to the revised work schedule. Mr. Flynn said he hoped to explore other options for a work schedule given his compromised immune system as well as the other vulnerable people in his household:
I am very happy and thankful to be employed with DF Architecture and in my brief time in the office I have enjoyed working with and meeting the people whom I have met. I’m hoping we can explore other options in terms of a work schedule because as proposed I feel very uncomfortable. By the time I come to the office there will have been approximately 8 people who have been in the office that day, I will then be bringing that potential exposure home to my wife, children and to my elderly mother in law. I have mentioned the medication I am on … which compromises my immune system and I have to be honest, I feel incredibly vulnerable and at risk. My wife and peers are all working remotely as well as their consultants and clients, I hope we can find a solution where I can minimize my potential exposure and keep you and your clients happy.
If you would like to discuss by phone please feel free to call me at any time.
[Emphasis added.]
[27] Mr. Arora replied to Mr. Flynn’s email at 5:59 p.m., asking him to follow the schedule:
We are also happy to have you on board. Regarding the work schedule, you are planned to be in the office 3 days a week from 3-7 pm and the rest is supposed to be done remotely. We have scheduled a way to have 4-6 people at a time and due to this I have asked the rest of the staff to switch their working hours to 7am – 3 pm. I appreciate if you can follow the schedule as we believe your presence in the office will be necessary for the coordination. Also as a principal I need to be fair to all my staff and I’m trying my best to keep all staff and office running and we need everyone’s help on this.
[Emphasis added.]
[28] Mr. Flynn interpreted Mr. Arora’s request to follow the schedule to mean that DFA could not accommodate Mr. Flynn’s concerns about the risk he perceived to his health. Thirty minutes later, at 6:29 p.m., Mr. Flynn resigned by email from his position at DFA:
Unfortunately I cannot expose myself to the risk. Thank you for the opportunity but I will have to resign.
[29] Mr. Flynn did not come into the office on April 3, 2020, and neither Mr. Arora nor Mr. Billimoria called Mr. Flynn or responded to Mr. Flynn’s resignation email.
IV ISSUES
[30] Mr. Flynn filed his complaint under s. 13 of the Code , which provides in relevant part:
Discrimination in employment
13 (1) A person must not
(a)refuse to employ or refuse to continue to employ a person, or
(b)discriminate against a person regarding employment or any term or condition of employment
because of the Indigenous identity, race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.
….
(4) Subsections (1) and (2) do not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.
[31] I must first decide whether Mr. Flynn establishes his case of discrimination under s. 13 of the Code . To do so, Mr. Flynn must prove:
a. he has a physical disability;
b. he experienced an adverse impact regarding his employment with DFA;
c. his physical disability was a factor in the adverse impact he experienced.
Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33.
[32] The last two elements of the test set out in Moore are not in dispute. DFA accepts that if Mr. Flynn establishes his disability, he suffered an adverse impact and that his physical disability was a factor in the adverse impact he experienced. Therefore, the issue before me is whether Mr. Flynn has a physical disability.
[33] If Mr. Flynn establishes his case, DFA may defend against the complaint by establishing a bona fide occupational requirement [ BFOR ] for any adverse impacts.
[34] Under the BFOR test, I must consider whether the Respondents’ standard or conduct that had an adverse impact on Mr. Flynn because of his physical disability: (1) had a purpose rationally connected to the performance of Mr. Flynn’s job, (2) was adopted in an honest and good faith belief that it was necessary to fulfill a legitimate work-related purpose, and (3) was reasonably necessary to fulfill that purpose, including that DFA could not accommodate Mr. Flynn without experiencing undue hardship: British Columbia (Public Service Employee Relations Commission) v. BCGSEU , 1999 CanLII 652 (SCC), [1999] 3 SCR 3 [ Meiorin ] at para. 54.
[35] The parties disagree about accommodation – the last factor of the BFOR test. Therefore, assuming Mr. Flynn establishes he has a disability within the meaning of the Code , the issue before me in the justification analysis will be whether DFA fulfilled its duty to accommodate Mr. Flynn to the point of undue hardship.
V ANALYSIS AND DECISION
[36] I now set out my decision about the issues in dispute. I first address whether Mr. Flynn has a physical disability. Having found that he does, I turn to whether DFA has made out a defence. Having found that it has not, I find that the complaint is justified. I order remedies in the final section of this decision.
A. Mr. Flynn has a physical disability that makes him more susceptible to COVID-19
[37] On the first element of the Moore test, the Respondents dispute that Mr. Flynn has a physical disability within the meaning of the Code . They say Mr. Flynn did not provide them with any evidence of a physical disability before he resigned.
[38] Whether a complainant has a disability under the Code depends on the facts and circumstances of the case: Young v. Vancouver Coastal Health Authority and others , 2018 BCHRT 27 at para. 100. Although the Code does not define “disability,” it has been interpreted by the Tribunal to mean a “physiological state that is involuntary, has some degree of permanence, and impairs the person’s ability, in some measure, to carry out the normal functions of life”: Rael v. Cartwright Jewelers and another , 2021 BCHRT 106 at para. 13, citing Boyce v. New Westminster (City) , 1994 CanLII 18445 at para. 50.
[39] I am satisfied that Mr. Flynn has proved he has a physical disability within the meaning of the Code —i.e. a compromised immune system due to immunosuppressive medication. This physical disability made him more susceptible to COVID-19 and made office work generally inadvisable. I am supported in my finding by the following. First, at the time that he resigned, Mr. Flynn was required to take medication for arthritis, which suppressed his immune system, an involuntary physiological state. Second, Mr. Flynn’s doctor described his need for such medication as potentially lifelong, which satisfies me that this condition has some degree of permanence. Third, Mr. Flynn’s immunocompromised status makes him more susceptible to viral infections like COVID-19. Such infections could lead to hospitalizations or death. Everyday activities, such as going into the office to work, therefore create additional risks for him that persons with a fully functioning immune systems do not have to worry about. I am persuaded that Mr. Flynn’s condition impairs his ability to engage in everyday activities to the same extent as a person without an immunocompromised system.
[40] Before moving on, I pause to comment on DFA’s argument that Mr. Flynn did not provide them with medical information before he resigned. I understand DFA to be arguing that Mr. Flynn failed to demonstrate to DFA that he had a disability that required accommodation. In my view, these arguments are more properly considered when determining whether DFA has established a defence, and I do so below: Central Okanagan School District No. 23 v. Renaud , [1992] 2 S.C.R. 970, p. 994.
B. DFA did not fulfill its duty to accommodate Mr. Flynn
[41] The parties do not dispute that in-office work per the revised schedule had a purpose rationally connected to the performance of Mr. Flynn’s job and was adopted in an honest and good faith belief that it was necessary to fulfill a legitimate work-related purpose—the first two factors of the BFOR test. Again, accommodation is at issue.
[42] In the accommodation process, both Mr. Flynn and DFA had obligations. Generally speaking, if a person requires accommodation, it is their responsibility to bring forward the relevant facts: Central Okanagan School No. 23 v. Renaud , [1992] 2 S.C.R. 970 at p. 994. However, if and when an employer knows or ought to have known an employee is experiencing disability-related barriers, the employer has the obligation to take all reasonable and practicable steps to address those barriers, including initiating the accommodation process, and finding and proposing solutions before taking steps that will negatively impact the employee: Renaud at pp. 992 and 994-995.
[43] There is both a procedural component and a substantive component within the duty to accommodate. The procedural component requires the employer to undertake an individualized investigation of accommodation measures and an assessment of an employee’s needs. The substantive component requires the employer to make modifications or provide the accommodation necessary in order to allow an employee to participate fully in the workplace: Meiorin at para. 66.
[44] The Tribunal has found that the procedural component imposes a duty on an employer to obtain all relevant information about the employee’s disability that is required to accommodate them. Depending on the particular circumstances of the case, that may include “information about the employee’s medical condition, prognosis for recovery, ability to perform job duties, and capabilities for alternate work”: Gordy v. Painter’s Lodge (No. 2) , 2004 BCHRT 225 at para. 84. Given the privacy issues at play, employers are not entitled to all medical information about the employee, just the information that is required to formulate a reasonable accommodation.
[45] The employee must participate in this process; the employee is obliged to facilitate the search for accommodation by bringing forward relevant, required information and accepting any reasonable proposals: Renaud at p. 994.
[46] DFA argues that Mr. Flynn was required to do more before its accommodation obligations kicked in. DFA says that Mr. Flynn failed to provide details of a specific medical condition, did not request specific accommodation, did not state that he was unable to work in the office due to a medical condition, did not request a meeting, did not come to the office on April 3, or seek any further clarification on cleaning, masking or other steps being taken by DFA. DFA says Mr. Flynn did not contact anyone to discuss the “parameters of the work schedule, whether it could be adjusted … he simply resigned.” Mr. Arora testified that “[Mr. Flynn] didn’t give us a chance.” I disagree.
[47] I am satisfied that Mr. Flynn brought forward his immune deficiency, and his concerns about working in the office, which raised the possibility that he might require accommodation. At that point, DFA should have initiated the accommodation process, including indicating a willingness to engage in a dialogue and seeking out any further relevant information from Mr. Flynn if it required that information in order to formulate an accommodation. Mr. Flynn would have been required to participate in that process by providing the information DFA required to accommodate him. He did not get this chance. Instead, DFA said that it would like him to follow the schedule. It was reasonable for Mr. Flynn to interpret this approach as rejecting his offer to “explore other options in terms of a work schedule”.
[48] DFA says it is apparent that Mr. Flynn expected DFA to “address any and all of his concerns to his satisfaction” in the 90 minutes between Mr. Flynn’s email about the work schedule and Mr. Flynn’s resignation email. This argument belies the evidence of Mr. Flynn’s efforts to address his concerns, which occurred before April 2, and Mr. Arora’s response when Mr. Flynn raised his concerns on April 2.
[49] Mr. Flynn told Ms. Guglani about his concerns on March 26 when he received the first schedule. The only evidence I have before me about Ms. Guglani’s reaction is that she insisted he come into the office. Next, Mr. Flynn told Mr. Billimoria and Mr. Arora about his medical status and his concerns about his vulnerability on March 27. Neither of them responded to his concern. Rather, another schedule was distributed on April 2, which Mr. Flynn viewed as increasing his exposure. These communications indicate that Mr. Flynn not only told DFA about his disability, but also that he wanted to engage in a dialogue with his new employers. DFA’s response was to insist that Mr. Flynn come in, ignoring his concerns, and failing to engage in this process at all.
[50] Finally, I am not persuaded by DFA’s argument that additional time would have resulted in meaningful accommodation. Mr. Arora and Mr. Billimoria both testified that Mr. Flynn should have come in and sat across the table from them to discuss his concerns, even though they did not ask him to do so. This simply ignores both the pre-vaccine realities at the beginning of the COVID-19 pandemic as well as Mr. Flynn’s communications that he felt uncomfortable coming into the office due to his immunocompromised condition. Mr. Arora also testified that his solution had Mr. Flynn come into the office to discuss would have been to ask him to follow the schedule for one to two weeks. This solution again ignores Mr. Flynn’s particular vulnerabilities as an immunocompromised person.
C. Conclusion on Liability
[51] The evidence indicates that it was DFA, not Mr. Flynn, who did not engage in the accommodation process. I find that DFA breached the Code . Next, I turn to the remedies that will follow from my finding.
VI Remedies
A. Section 37(2)(a) Order to Refrain from the Same or Similar Conduct
[52] I have found the complaint to be justified. Therefore, I order DFA to cease the contravention of the Code and to refrain from committing the same or a similar contravention: Code , s. 37(2)(a).
B. Section 37(2)(b) Declaratory Order
[53] Under s. 37(2)(b) of the Code , the Tribunal may make a declaratory order that the conduct complained of, or similar conduct, is contrary to the Code . In the circumstances of this case, I consider it appropriate to make such an order. I declare that DFA discriminated against Mr. Flynn based on physical disability, in violation of s. 13 of the Human Rights Code .
C. Section 37(2)(d)(ii) Compensation – Lost Wages
[54] Mr. Flynn claims nearly four years of salary – $367,605.18 – in compensation for lost wages. Mr. Flynn calculated this amount by subtracting his business and employment earnings in 2020, 2021, 2022, and 2023 from $110,000 and adding the resulting figures from each of those years together. Mr. Flynn provides his tax returns from 2020 to 2023 to support his claim.
[55] DFA says that I should not award any compensation for lost wages because Mr. Flynn’s employment was probationary and could have ended after three months. It says that an award of the magnitude sought by Mr. Flynn would be “approaching absurdity” given the short period of time that DFA employed Mr. Flynn.
[56] Section 37(2)(d)(ii) of the Code gives the Tribunal discretion to compensate a person for all, or a part, of any wages or salary lost, or expenses incurred because of discrimination. The purpose of wage loss compensation is to restore a complainant, to the extent possible, to the position they would have been in had the discrimination not occurred.
[57] When assessing a complainant’s wage loss, the first question is whether a causal connection has been established between the discrimination and the losses claimed: Gichuru v. Law Society of British Columbia (No. 9) , 2011 BCHRT 185 at para. 298-303, upheld in 2014 BCCA 396; Benton v. Richmond Plastics , 2020 BCHRT 82 at para. 88. This is a question of fact: Mema v. City of Nanaimo (No. 2) , 2023 BCHRT 91 at para. 378. The onus is on the complainant to show a causal connection between the discriminatory act and the loss claimed: Gichuru at para. 302.
[58] Once the Complainant establishes the requisite causal connection, the amount of compensation is a matter of discretion, which is exercised on a principled basis considering the purposes of the Code and the purposes of the award: Gichuru at para. 303.
[59] The Tribunal also considers whether a complainant has taken reasonable steps to mitigate their losses. The Tribunal may reduce a wage loss award if a complainant did not reasonably mitigate their wage loss or if other wage loss uncertainties need to be accounted for, such as the complainant leaving the employment: LaFleche v. NLFD Auto dba Prince George Ford (No. 2) , 2022 BCHRT 88 at para. 87. The burden of proving a complainant has failed to mitigate their loss rests on the respondent: Gichuru at para. 370.
[60] First, I have found the circumstances surrounding Mr. Flynn’s resignation discriminatory. But for the discrimination, Mr. Flynn would not have resigned and would have received employment income from DFA. I find Mr. Flynn did incur financial loss due to the discrimination. Mr. Flynn is entitled to compensation for lost wages.
[61] Turning to the appropriate amount to award, Mr. Flynn testified that the discrimination he experienced significantly disrupted his career trajectory, particularly because the resignation happened during the pandemic and the resulting uncertainty in the economy. He said it has taken him a considerable amount of time to recover from the financial losses he incurred. This is mirrored in his tax returns, which show a gradual increase in income between 2020 and 2023. However, even Mr. Flynn’s 2023 income did not approach $110,000.
[62] DFA did not cross-examine Mr. Flynn on this subject or take issue with how Mr. Flynn calculated his damages. DFA did not explore Mr. Flynn’s efforts to mitigate his losses. Despite this, DFA argues that at best, Mr. Flynn is entitled to several thousand dollars.
[63] Again, it was DFA’s onus to prove a failure to mitigate. In the absence of evidence that Mr. Flynn did not mitigate his losses, I find that he is entitled to a substantial portion of the amount he seeks. However, I do not find that he is entitled to the entire amount. Rather, I award Mr. Flynn half of what he seeks: $183,802.59. The reduction in the amount sought balances the purposes of the Code and the award with the contingencies inherent in employment. In particular, it accounts for the uncertainties surrounding Mr. Flynn’s employment with DFA, given Mr. Flynn was still on probation, and the upheavals in the workforce during the pandemic.
D. Section 37(2)(d)(ii) Compensation – Legal Expenses
[64] Mr. Flynn seeks compensation for legal expenses. In the evidence before me is a bill from Mr. Flynn’s lawyer for $14,268.65. It does not include a description of the work performed or any other indication of how these fees were incurred. DFA argues that I should not award compensation for legal expenses due to this lack of information. I agree.
[65] Under s. 37(2)(d)(ii) of the Code, the Tribunal has authority to award compensation to a successful complainant for all or part of the expenses incurred by the contravention. The Tribunal has held that “legal fees that flow from the discrimination, but are unrelated to prosecuting that claim, are compensable”: Kerr v. Boehringer Ingelheim (Canada) (No. 5) , 2010 BCHRT 62 at para. 93; see also Fraser v. BC Ministry of Forests, Lands and Natural Resource Operations (No. 6) , 2019 BCHRT 195 at para. 16-21.
[66] Without a more detailed bill, or an explanation from Mr. Flynn, I cannot determine whether the fees flowed from the discrimination, but not from prosecuting the claim before me. I decline to award compensation for Mr. Flynn’s legal fees.
E. Section 37(2)(d)(iii)
[67] Mr. Flynn seeks an award of $30,000 for injury to his dignity, feelings, and self-respect.
[68] Under s. 37(2)(d)(iii) of the Code, the Tribunal has the discretion to award compensation for injury to dignity. The purpose of these awards is compensatory, not punitive. Determining the amount of an injury to dignity award depends on the specific facts and circumstances in a given case. At the same time, for the purposes of consistency and fairness, it is often helpful to consider the range of awards made in similar cases.
[69] To determine an appropriate award, the Tribunal generally considers three broad factors: the nature of the discrimination, the complainant’s social context or vulnerability, and the effect on the complainant: Basic v. Esquimalt Denture Clinic and another , 2020 BCHRT 138 at para. 193; Gichuru at para. 260. Ultimately, the amount of an injury to dignity award is “highly contextual and fact-specific”: Gichuru at para. 256. While the Tribunal may consider awards in other cases, the exercise is not to identify a “range” established in other cases. Rather, it is to try to compensate a complainant for the actual injury to their dignity: University of British Columbia v. Kelly , 2016 BCCA 271 at paras. 59-64; Francis v. BC Ministry of Justice (No. 5) , 2021 BCHRT 16 at para. 176.
[70] In terms of the nature of the discrimination, the loss of a job is the “ultimate employment-related consequence”, which is severe in any circumstance: Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria and others , 2021 BCHRT 137 at para. 129. As succinctly put in Reference Re Public Service Employee Relations Act (Alta.) , 1987 CanLII 88 (SCC), [1987] 1 SCR 313 at p. 368 (per Dickson CJ):
Work is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of [their] sense of identity, self-worth and emotional well-being.
Cases involving the loss of employment often attract the top end of this Tribunal’s awards given the central significance of a person’s employment to their financial and emotional wellbeing: Nelson at para. 129.
[71] Next, I consider the social context of the complaint. Here, Mr. Flynn was particularly vulnerable given the employer-employee relationship between him and DFA: Gibbons v. CML Contracting and another , 2024 BCHRT 220 at para. 123. This vulnerability was compounded by the fact that Mr. Flynn was a new employee under probation. Indeed, Mr. Flynn testified to the discomfort that raising his health issues with his new employer caused him. Further, this complaint arose in the context of the pandemic, and the difficulties associated with gaining and maintaining employment at the time.
[72] Finally, regarding the effect on Mr. Flynn, DFA argues that there was no evidence of any mental distress or hurt feelings. During his testimony, Mr. Flynn spoke about the impact that the discrimination had on him, which was serious and fundamental to his wellbeing, both on an emotional and professional level. Mr. Flynn said that he felt he had to choose between his health and his employment. The discrimination significantly impacted his life. He lost sleep, experienced extreme anxiety, and lost confidence in himself and his ability to do his job. He described how it was hard to explain the gap in his resume since he did not find another job right away and how he could not maintain his professional registration as an architect, so he retired that registration. He said he lost the friendship of those who could not understand what he was going through. It is clear to me that Mr. Flynn’s dignity, feelings, and self-respect as an architect suffered as a result of DFA’s discrimination.
[73] Mr. Flynn also relies on three prior cases from this Tribunal to support his request for $30,000 in injury to dignity: Kerr v. Boehringer Ingelheim (Canada) (No. 4) , 2009 BCHRT 196; Cassidy v. Emergency Health and Services Commission and others (No. 2) , 2008 BCHRT 125; and Lowe v. William L. Rutherford (BC) and another (No. 3) , 2007 BCHRT 336. I discuss each one in turn. However, before I begin, I note the age of these cases, and the recent upward trend in Tribunal awards: L.J. v. D.M ., 2020 BCHRT 129 at para. 216.
[74] In Kerr , the Tribunal awarded the complainant $30,000 after finding that the complainant’s employer failed to accommodate her to the point of undue hardship, resulting in the complainant resigning from her employment. There, the injury to dignity was compounded by the length of time—4 years—that the employer failed to accommodate the complainant, which meant that the complainant could not work. In contrast, the relationship between DFA and Mr. Flynn was short. While this might indicate that I should award a lesser amount, I am also mindful that Kerr is 16 years old.
[75] Cassidy is another case where the respondent failed to take all reasonable and necessary steps to accommodate the complainant in the employment context. However, the complainant had not lost his employment in that case, and the Tribunal awarded $22,500.
[76] In Lowe , the Tribunal awarded $20,000 where an employee with Crohn’s Disease was terminated, leading to an exacerbation of his physical disability given the stress associated with the termination. I find the circumstances here to be different in that the end of Mr. Flynn’s employment did not lead to a worsening of his physical disability. Therefore, I find Lowe to be of limited assistance.
[77] In Benton , a more recent decision of this Tribunal, the complainant was employed by the respondent for one day only before she was terminated. Nevertheless, the Tribunal awarded $30,000 in injury to dignity given the severity of impact of the discrimination on her. The Tribunal found that the discrimination caused the symptoms of Ms. Benton’s mental illnesses to worsen, and she experienced depression, including suicidal ideation.
[78] I am also guided by Gibbons v. CML Contracting and another , 2024 BCHRT 220, where the Tribunal awarded the full amount sought—$22,500—to a complainant who had been terminated from his employment based on his age. The impact on the complainant was serious and affected the complainant’s relationships as he became more prone to bouts of anger. There, the Tribunal distinguished Wells v. Langley Senior Resources Society , 2018 BCHRT 59. In Wells , the Tribunal awarded $30,000 to the complainant, a person with a mental disability, after finding that her disability was a factor in the respondent’s decision to terminate her employment. Wells was distinguishable because in Wells the Tribunal found that the injury to dignity was compounded by the fact that the respondent directed abuse at the complainant prior to the termination and the respondent made public statements about the complainant after the termination.
[79] Here, the three factors discussed above suggest an injury to dignity award on the high end of the range for discrimination is appropriate. The case law supports my conclusion that a substantial award is warranted. The circumstances in this case are not as severe as Benton , where the complainant contemplated suicide, but they are more severe than Gibbons . This suggests an award between $22,500 and $30,000. For the reasons set out above, particularly the loss of Mr. Flynn’s job and the impact on him, I find it is appropriate to award $25,000 for the injury to Mr. Flynn’s dignity, feelings, and self-respect.
[80] Finally, I recognize that this case arises from the unique circumstances at the beginning of the COVID-19 pandemic. Mr. Arora and Mr. Billimoria testified that they were doing their best amidst the changing landscape, which created business concerns and raised technological issues. They say that DFA was trying to accommodate everyone and that all its employees had concerns about being exposed to COVID-19. Again, however, an injury to dignity award is not about punishing the respondent but about compensating the complainant. Further, treating everyone the same can result in discrimination: Eby v. The Owners, Strata Plan 107 , 2024 BCHRT 55 at para. 37. While I acknowledge that Mr. Flynn’s need for accommodation arose during a particularly difficult time in recent history, it does not change my analysis – either with regards to the discrimination finding or the damages award.
F. Interest
[81] The Tribunal has the discretion to award interest on awards. An award of interest is part of the compensatory nature of the Tribunal’s awards, recognizing that but for the discrimination a complainant would have had the use of money now awarded. The interest places the complainant in the economic position they would have been in but for the discrimination: Vasil v. Mongovius and another (No. 3) , 2009 BCHRT 117.
[82] I find it appropriate to order pre-judgment interest for wage loss and post-judgment interest on all the amounts awarded as part of an attempt to fully compensate Mr. Flynn for the loss and injury. The interest is to be paid based on the rates set out in the Court Order Interest Act .
G. Other Remedies
[83] The Tribunal may require a respondent to take specific steps to address the effects of a discriminatory practice and may require a respondent to adopt and implement an employment equity program or other special program: Code , s. 37(2)(c)(i) and 37(2)(c)(ii).
[84] Mr. Flynn asked that these remedies be awarded but did not make any submissions in relation to ordering DFA to adopt an employment equity program or other special program. As such, I decline to make any order under s. 37(2)(c)(ii).
[85] I also decline to require DFA to provide particular education to their directors and employees, a final remedy sought by Mr. Flynn. In my view, this decision, and the orders I have made, are sufficient for DFA to understand their legal obligations under the Code with respect to disability-related accommodations. Having the benefit of these reasons, I have no reason to believe that DFA, or their staff, will repeat the discrimination which occurred in this case.
VII CONCLUSION
[86] I have found that DFA discriminated against Mr. Flynn based on his physical disability, in violation of s. 13 of the Human Rights Code . I make the following orders:
a. I order DFA to cease the contravention and refrain from committing the same or a similar contravention: s. 37(2)(a).
b. I declare that the Respondents’ conduct contravened s. 13 of the Code : Code , s. 37(2)(b).
c. I order the Respondents to pay Mr. Flynn:
i. $183,802.59 in lost wages: s.37(2)(d)(ii);
ii. $25,000 as compensation for injury to his dignity, feelings, and self-respect: Code , s. 37(2)(d)(iii);
iii. pre-judgment interest on the wage loss award of $183.802.59 until paid in full based on the rates set out in the Court Order Interest Act ; and
iv. post-judgment interest on the wage loss and injury to dignity awards until paid in full, based on the rates set out in the Court Order Interest Act .
Robin Dean
Tribunal Member