Damages awarded for injury to dignity, feelings and self-respect
under the British Columbia Human Rights Code (the "Code")
appear to be on the rise again following the B.C. Human Rights
Tribunal's recent remedy decision in Kelly v. University of
Such damages are intended to be compensatory and not punitive.
Prior to the Kelly decision, the unofficial, but generally adhered
to maximum amount awarded as damages for injury to dignity by the
Tribunal was $35,000. However, the Kelly decision dramatically
increased this amount, and in doing so provided a strong reminder
that there is no legislative cap to the amount that may be awarded
for this type of damages under the Code.
The complainant had been enrolled in the Family Practice
Residency Program (the "Program") at the University of
British Columbia ("UBC") in its rural program. He
suffered from Attention Deficit Hyperactivity Disorder and a
non-verbal learning disability and was struggling to succeed in the
rural Program, failing his first rotation. UBC attempted to
accommodate the complainant by moving him out of the rural Program
to Vancouver and providing increased supervision and mentorship.
The complainant did complete some rotations however he continued to
struggle and following an inappropriate email sent by the
complainant to his fellow residency students, concern arose over
his suitability to continue in the Program. The complainant was
placed on a leave of absence and was required to undergo medical
assessments, which resulted in recommendations for accommodation.
However, UBC determined that it was unable to accommodate the
complainant without breaching the required College of Family
Physicians of Canada residency guidelines and suffering undue
hardship, and accordingly terminated him from the Program. This
subsequently led to his dismissal from his employment with the
Providence Health Care Society (which was conditional on his
participation in the Program).
In an earlier decision, the Tribunal determined that UBC had
discriminated against the complainant on the basis of disability in
contravention of both section 8 (discrimination in accommodation,
service and facility) and section 13 (discrimination in employment)
of the Code by terminating him from the Program. The Tribunal held
that UBC failed to prove it could not have reasonably accommodated
the complainant, finding that, among other things, UBC's
conclusion that it would suffer undue hardship was not grounded in
clear and factual evidence.
In the Tribunal's remedy decision in Kelly, the complainant
sought damages for lost wages and injury to dignity. The Tribunal
determined the complainant's entry into the medical profession
had been delayed for six years as a result of UBC's actions and
awarded over $385,000 in lost wages for that period of delay.
However, the most significant aspect of this remedy decision was
the Tribunal's decision to award the complainant damages for
injury to dignity of $75,000, an amount more than double the
previous high watermark for such damages.
In determining that such an unprecedented and significant award
was warranted in this case, the Tribunal pointed to the following
factors, among others:
the complainant had been delayed for six years in entering the
career of his choice and for which he expended a lot of time and
being a physician was a life-long passion for the complainant
and accordingly the discrimination was especially detrimental to
he suffered humiliation, depression and other health issues and
the discrimination had a severe impact on his self-esteem and
self-identity for an ongoing and prolonged period;
the complainant had difficulty securing alternative employment
based on concerns over why he was not in the medical profession or
that he was overqualified;
he had to move back home with his parents and his personal
relationships suffered; and
he was in a particularly vulnerable position as a student and
an individual with a disability.
Although the Tribunal expressly stated in Kelly that this was a
particularly unique and serious case for the above-mentioned
reasons, this decision may signify a trend of increasing damage
awards for injury to dignity in human rights cases. Awards for
injury to dignity have historically rarely been above $20,000. In
any event, this case serves as an important reminder to employers
of the vast remedial powers of the Tribunal and the
unpredictability of damage awards in human rights cases. Employers
should make sure they have considered all reasonable
accommodations, including through consultation with the employee,
and have clear and factual evidence of any undue hardship. The
consequences for failing to do so may be costly.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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