we reported on a decision of the B.C. Human Rights Tribunal
which awarded $75,000 in damages for injury to dignity, feelings,
and self-respect, more than twice the previous high water mark
($35,000) in similar cases. The B.C. Supreme Court has now ruled that the $75,000 award was
unreasonable in the circumstances. The decision likely
signals at least a pause in the expansion of such awards.
Dr. Kelly was a medical school graduate who had been diagnosed
with ADHD and a non-verbal learning disability. He
experienced significant difficulties completing his residency
program rotations. Dr. Kelly consulted various specialists
during the 21 months he tried to satisfy the program
requirements, and UBC attempted to accommodate him. However,
Dr. Kelly continued to perform below expectations in many of his
rotations. Eventually, after further medical assessments, UBC
decided that Dr. Kelly was unsuitable for the program and
discharged him with two months' severance pay. The
Tribunal found UBC's actions to be discrimination in employment
and in the provision of services customarily available to the
The Court upheld the Tribunal's finding of
discrimination. However, it found that the Tribunal's
damages award for injury to dignity was not justified in the
The Court stated that there is no official cap on the amount of
damages that can be awarded for injury to dignity, feelings, and
self-respect, but nonetheless held that the Tribunal's award
was patently unreasonable in the circumstances of the case.
UBC had argued that the award was excessive for several reasons,
including because the Tribunal had overemphasized the fact that Dr.
Kelly was engaged in medical training, rather than other types of
training or employment. UBC contended that the award
therefore created a two-tiered system − one for
professions, and one for mere employees. The university also
argued that the unprecedented award was at odds with the
expectations created by previous awards.
The Court agreed with UBC, stating:
While the circumstances are
unquestionably "serious", I see nothing about them that
is "unique" in the sense that Dr. Kelly suffered an
injury to a greater extent than others who have lost their jobs
and/or opportunities as a result of discrimination. Nor do I
see anything to indicate why $75,000 is "reasonably
proportionate" to Dr. Kelly's injury, but apparently too
high for those persons who have previously been awarded $35,000 or
The fact that Dr. Kelly was in a
medical program is not a reasonable basis for more than doubling
the previous highest award for similar discrimination.
The Court also pointed out that Dr. Kelly was not the only one
dealing with a unique situation. The educators and committees
at UBC were operating in exceptional circumstances, and had made
decisions that they considered were in the best interests of the
The Court sent the issue of the appropriate damages award back
to the Tribunal for reconsideration. It declined to suggest
that Dr. Kelly's award should not be more than $35,000, but
noted that it could see no principled reason that his award should
be more than double the previous highest award.
This does not mean that such an award might never be granted or
upheld; awards for injury to dignity are based on individual
circumstances. However, this decision signalled quite clearly
that the mere fact that a complainant was employed or sought
employment in a traditionally prestigious field should not, on its
own, warrant drastically higher damages.
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