Over the past few years, we have seen a number of cases in
Canada where human rights tribunals have awarded record setting
damage awards to employees who have been subject to discrimination
in the workplace. In many of these cases, the damages have greatly
exceeded what a Court would be prepared to award in a wrongful
dismissal case. A recent judicial review decision out of British
Columbia, University of British Columbia v.
Kelly, has set aside one such damage award.
Human Rights Tribunal Decision
The applicant was a student in the University of British
Columbia ("UBC") medical school residency program.
He suffered from ADHD and a non-verbal learning disability.
As a result of his treatment by the medical school, the British
Columbia Human Rights Tribunal found he suffered embarrassment and
humiliation, and eventually his participation in the program was
terminated. Six years after that termination, he was
re-admitted to the program following an earlier Tribunal decision
that found that UBC's treatment of him was discriminatory.
In determining lost wages, the Tribunal awarded the difference
between the earnings the applicant actually received, and what he
would have made had he completed the program and moved on to work
as a GP at his father's clinic. Over six years, the
Tribunal found that the difference was roughly $385,000.
While this is high, and covers a longer period than most
limitations statutes would allow, the size of the award is in part
large due to the higher wages earned by doctors as compared to the
litigants in other human rights cases.
Most surprisingly, the Tribunal awarded $75,000 in general
damages for loss of dignity, self-respect, and hurt feelings, which
is one of the highest awards by any human rights tribunal in
Canada. Although the effect of the discrimination was nullified by
the re-admission of the applicant into the residency program, the
Tribunal found that the applicant was for a time unable to enter
into his chosen profession because of the discrimination, and that
he had suffered serious social and employment consequences. The
Tribunal did not offer any detailed explanation as to why this case
merited a larger award than had previously been awarded.
Human rights tribunals in Canada are empowered to award general
damages for human rights violations. These damages are
intended to compensate the victims of discrimination for the loss
of dignity and self-respect, and hurt feelings, caused by
discriminatory actions. These damages have historically
ranged from $500 to $15,000, with an unofficial high range
established from $25,000 to $40,000.
Decision on Judicial Review
UBC applied for judicial review of the Tribunal decision on both
the merits and remedy. The Supreme Court of British Columbia upheld
the Tribunal decision on the merits.
With respect to remedy, the Court upheld the award of
compensation for lost wages. However, the Court set aside the award
for loss of dignity, self-respect and hurt feelings. The previous
highest award for discrimination on the basis of mental and/or
physical disability awarded by the Tribunal was $35,000. The Court
reasoned that although the human rights violation was serious,
there was nothing unique about these circumstances to award more
than double the previous highest award for similar
The Court noted that the Tribunal should not be bound by past
damages awards as to prevent it from adequately compensating a
complainant. It emphasized that it was not suggesting the award
should not be more than $35,000. However, it found that an award of
$75,000 was not supported by the evidence in this particular
Damage awards are an area where human rights tribunals are
afforded great deference by the courts. The general damage award in
this case greatly exceeded the norm, leading the court to conclude
that it was unreasonable. It will be interesting to see the impact
of this decision on future awards in British Columbia and other
jurisdictions across Canada.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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