How much are your hurt feelings worth? For the successful complainant in Kelly v. University of British Columbia (No.4), 2013 BCHRT 302 [Kelly], the answer to this question was $75,000.
Until Kelly, the Tribunal's highest award for injury to dignity, feelings, and self-respect in British Columbia was $35,000. Employers should pay attention to the lessons we can learn from Kelly.
Dr. Kelly was a resident in UBC's Residency Program whose enrollment was terminated for reasons of unsuitability. This resulted in the termination of his employment and various other consequences including to Dr. Kelly's health. Dr. Kelly filed a human rights complaint against UBC alleging discrimination under section 8 (discrimination in accommodation, service and facility) and section 13 (discrimination in employment). The Tribunal found his complaint to be justified on both grounds. Dr. Kelly had Attention Deficit Hyperactivity Disorder and a non-verbal learning disability. Both disabilities affected his performance in the Program. The Tribunal found that although UBC had accommodated Dr. Kelly in the Program to some extent, UBC did not fully discharge its duty.
The B.C. Human Rights Tribunal has broad discretion under the Human Rights Code (Code) to award various remedies to victims of discrimination. One possible remedy is compensation for injury to dignity, feelings, and self-respect. This sort of award is not intended to be punitive, nor is it automatically granted to all victims of discrimination. When assessing whether to grant such an award, the Tribunal will consider the facts of each case, including: the nature of the discriminatory conduct (such as duration and frequency); the complainant's vulnerability; the harm suffered by the complainant; and the totality of the relationship between the parties.
Dr. Kelly assessed his damages for injury to his dignity, feelings, and self-respect at $75,000. The Tribunal agreed with this assessment, noting that:
- Dr. Kelly's career path was significantly delayed by six years;
- he was pursuing an almost life-long desire to become a physician and the loss of opportunity (particularly after spending considerable time and resources in pursuit of this career) had a serious and detrimental impact on him, including deep humiliation, depression, and suicidal thoughts;
- he experienced embarrassment when applying for jobs and explaining why, given his educational background, he was not pursuing his medical career;
- he lost his source of income and needed to move back in with his parents;
- his relationships with family and friends became strained and he became socially isolated; and
- he was in a vulnerable position both as a student and as a resident who suffered from a mental disability, was compliant with UBC's request for medical information, and was dependent upon UBC to accommodate his disabilities to complete the Program.
While the harm suffered in this case is not typical, employers can expect complainants to use Kelly as a model to obtain a greater measure of damages. This is in addition to damages for loss of income arising from discrimination that complainants often seek.
To avoid similar liability, Kelly reminds us of the following:
- Defences of undue hardship require clear evidence, and not anecdotal evidence. UBC's claim of undue hardship in Kelly was rejected because there was "no substantive factual foundation to support a conclusion that the Program would be fundamentally altered or its professional standards lowered if it was to accommodate Dr. Kelly";
- The duty to accommodate requires that a conscientious and reasonable attempt at accommodation be made. Although the Tribunal found that UBC was not required to demonstrate that a particular accommodation had failed before it could conclude that the accommodation could not be implemented, the Tribunal found that UBC "could not simply act upon an impressionistic conclusion, feeling, or belief". UBC was required "to demonstrate that it had conscientiously turned its mind to whether it could reasonably implement the recommended accommodations". This requirement included "consultation with Dr. Kelly about the proposed accommodations, the Program's specific concerns and how, if at all, the accommodations might be implemented in light of those concerns"; and
- Once an employer has information to believe that accommodation may be required, the primary responsibility lies with the employer to find and propose a reasonable accommodation. The accommodation process requires a dialogue. This includes obtaining, and providing, medical information when appropriate. In Kelly, the Tribunal found that UBC had not contacted Dr. Kelly to discuss the proposed accommodations, and that it was incumbent upon UBC to engage in such a dialogue about the accommodation process.
Although it remains to be seen how Kelly will influence the Tribunal's future injury to dignity awards (the case has many facts that are distinguishable from typical human rights cases), we can certainly expect that future complainants will seek Kelly – type damages.
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