July 29, 2011

Human rights liability of regulatory bodies: the Gichuru compensation award

Administrative Law
Human Rights
Professional Regulation
Registration and Fitness

In a recent decision in the matter of Gichuru v. The Law Society of British Columbia – we blogged about the liability decision (2009 BCHRT 360) here. – the B.C. Human Rights Tribunal awarded the complainant, Mr. Gichuru, approximately $100,000 in compensation (2011 BCHRT 185) for discrimination by the Law Society, based on the Society asking the complainant on membership application forms about any prior treatment for certain mental conditions including mood disorders, and how the Law Society consequently treated him as a result of his disclosing a prior depressive episode.

The award of the Tribunal includes the following major components:

Compensation for injury to dignity, feelings and self-respect: $25,000;

Compensation for loss caused by a ten-month delay in call to the Bar: $42,993; and

Compensation for wages lost in the post-call period: $26,810.24.

Of importance to all regulators, the tribunal noted, in addressing injury to dignity (and in awarding $25,000 under this head of loss), the complainant was in an “extremely vulnerable position,” given that events were taking place at the very outset of his career, and involved interactions with his professional governing body, leading to “a significant power imbalance at play.” [262]

The tribunal awarded Mr. Gichuru compensation for his being delayed entry into the profession for ten months, [330] and also for lost wages in relation to his preparing for, and attending at, the hearing on liability, [349] but rejected the complainant’s assertion the Law Society had permanently impaired his earning capacity. [331 and 348] In fact, after a certain point, the complainant had not taken reasonable steps to fulfill his earning capacity. [345] Regulators should note, however, that Mr. Gichuru relied on actuarial evidence calculating wage losses not only for the base period of delayed entry into the profession, but for the impact of delayed entry over the applicant’s entire working life, in the form of a permanent earnings lag. The complainant alleged permanent impairment of earning capacity in excess of $1 million.

NB: The steps taken by the Law Society after the 2009 liability decision are set out in a July 19, 2011 News Release of the Law Society, available here.

Gichuru v. The Law Society of British Columbia (No. 9), 2011 BCHRT 185