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LRB limits mental distress remedies
September 10, 2000

In Tillicum Haus Society (Tillicum Haus Native Friendship Centre), BCLRB No. B278/2000) the union applied under Section 141 for leave and reconsideration of B424/97 in which an original panel, assuming it had the requisite jurisdiction to award such damages, declined to award monetary compensation for hurt feelings and emotional distress to an employee unjustly terminated for reasons of anti-union animus. The union relied on the Supreme Courtt of Canada decision Wallace v. United Grain Growers Limited, [1997] 3 SCR 701, to support its argument that the Board could and should award damages for mental distress. Wallace was a refinement of Vorvis v. ICBC (1989), 58 DLR (4 th ) 193 (SCC). In both of those cases the Court was addressing the superior courts’ inherent remedial jurisdiction in the wrongful dismissal context.

As the right to dismiss with reasonable notice has no place in modern labour law, neither the Wallace nor Vorvis decisions are relevant to the issue of the scope of the Board’s remedial jurisdiction under the Code. Moreover, those decisions addressed the issue of potential implied good faith obligations in the common law employment relationship. The Code, by contrast, expressly addresses certain forms of bad faith conduct (see Sections 5 and 6). While Sections 14(4) and 133(1) of the Code are, on their face, capable of being read as conferring jurisdiction to award aggravated damages for mental distress, that alone does not mean that such jurisdiction has been conferred upon the Board.

The Human Rights Act contains an express provision enabling that tribunal to award damages for hurt feelings. The Board has no expertise relevant to the assessment of damages for personal injury and, further, the whole area of workplace injury has been generally ascribed to the Worker’s Compensation Board under a comprehensive statutory regime. The assessment of damages arising from a breach of Part 5 of the Code has been specifically allocated to the courts under the Code.

Finally, the panel noted that in the US, the National Labour Relations Board has declined to award “tort remedies”, holding that claims respecting costs of medical and rehabilitative treatment relating to breaches of its constituent legislation are appropriately left to other forums. The Legislature intended to confer upon the Board the broad array of remedial powers necessary to vindicate the purposes of the Code and to set aside the effects of breaches of the Code. To this end the Board was directed to act with expedition with respect to issues of dismissal and discipline (Section 5(2)) and, for example, is empowered to order reinstatement. However, an order assessing and awarding damages for mental distress will not further the restoration of the affected employee’s statutory right to choose union representation, nor does the Board have any expertise relevant to the making of such an order.

The Legislature did not intend the Board to award aggravated damages for mental distress. Finally, even if the Board did have the requisite jurisdiction to award monetary damages for mental distress, such awards should, as a matter of policy, be limited to cases involving extremely egregious conduct. The original panel held it would be inappropriate to order such damages in the circumstances of the present case, and the reconsideration panel would not be prepared to interfere with that finding. The union’s application for reconsideration was dismissed.

(Click here for link to decision)