The BC Human Rights Code empowers the Human Rights Tribunal to make various financial awards where there has been discriminatory conduct, including in employment cases.
The British Columbia Human Rights Code (the
"Code") empowers the Human Rights Tribunal to make
various financial awards where there has been discriminatory
conduct, including in employment cases. One type of award is for
injury to a complainant's "dignity, feelings and
self-respect", often referred as an award for injury to
The Code does not provide for any cap for an award for injury to
dignity. Over the years, the amount of awards made by the Tribunal
for injury to dignity has slowly creeped upward, but generally
remained relatively modest. By 2013, the highest award by the
Tribunal for injury to dignity was $35,000.
In a 2013 decision, Kelly v University of British
Columbia ("Kelly"), the Tribunal issued a
surprising award of $75,000 for injury to dignity. Kelly involved a
UBC student with Attention Deficit Hyperactivity Disorder and a
Non-verbal Learning Disorder, who had been terminated from its
medical residency program. In more than doubling its highest award,
the Tribunal found the facts to be unique and serious, including
that it was the complainant's life-long passion to be a doctor,
and that as a result of the termination, the complainant suffered
deep humiliation and isolation from his family, including from his
father, who was a doctor.
The decision in Kelly did upwardly influence awards for injury
to dignity. In a case decided earlier this year involving the
reprehensible treatment of a housekeeper, the Tribunal referenced
the decision in Kelly, and awarded $50,000 for injury to
This year, UBC sought a review by the British Columbia Supreme
Court of the Tribunal's decision in Kelly, arguing that the
decision ought to be set aside. In a judgment released last month,
the Court largely upheld the Tribunal's findings, but did set
aside the $75,000 award for injury to dignity. In doing so, the
Court concluded that there was no compelling evidence or rationale
that would justify the Tribunal more than doubling the highest
award. The Court remitted the matter back to the Tribunal to
further consider an appropriate amount for injury to dignity. The
Court left open the possibility that such an award could be higher
than the previous high of $35,000, but made it plain that an award
in the magnitude of $75,000 was not reasonable.
It remains to be seen what award will be made by the Tribunal in
Kelly, when it reconsiders the award. But, likely, the effect of
the Court's conclusions in Kelly will be to curtail larger
awards for injury to dignity, and return awards more closely to the
previous high of $35,000.
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.
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.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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