previously reported on the B.C. Human Rights Tribunal's record-high $75,000 award for injury to
and the subsequent decision of the B.C. Supreme Court that the
award was patently unreasonable in the circumstances.
The B.C. Court of Appeal in University of British Columbia v. Kelly has
now restored the Tribunal's original award for injury to
dignity, emphasizing that it is for the Tribunal to consider the
evidence in each individual case.
Dr. Kelly was a medical school graduate who had been diagnosed
with ADHD and a non-verbal learning disability. He experienced
significant difficulties while attempting to complete UBC's
residency program. While he actively sought medical treatment, and
UBC attempted to accommodate him, he continued to perform below
expectations. Ultimately, UBC decided that Dr. Kelly was unsuitable
for the program and discharged him with two months' severance
The Tribunal found UBC's actions to be discriminatory, and
awarded Dr. Kelly $75,000 in damages for injury to dignity, more
than twice the previous high water mark for this type of damages.
While the B.C. Supreme Court upheld the Tribunal's finding of
discrimination, it found that the Tribunal's award for injury
to dignity was patently unreasonable in the circumstances.
The Court of Appeal dismissed UBC's appeal on the finding of
discrimination, but allowed Dr. Kelly's cross-appeal on the
issue of the dignity award. Dr. Kelly argued that the B.C. Supreme
Court should have deferred to the Tribunal's decision, which
was based on principle and supported by the evidence. The Court of
Appeal agreed, and restored the Tribunal's original $75,000
The Court of Appeal stated that a court reviewing a dignity
award should not treat such a review like an appeal of damages in
the personal injury context. Ranges of awards established in
previous cases "play a more diminished role" in the
Tribunal's determination of an award for injury to dignity, and
it is not patently unreasonable for the Tribunal to exceed the
ranges established by prior cases.
The Court of Appeal also considered whether the Tribunal's
award was based on the evidence. It noted that the Tribunal found
that Dr. Kelly had suffered acutely due to the discriminatory
termination. Such factual findings, the Court of Appeal held, are
properly made by the Tribunal, and it is not appropriate for a
reviewing judge to re-weigh the evidence.
The Court of Appeal also found that the B.C. Supreme Court had
made two errors in concluding that Dr. Kelly was no more impacted
than any other person terminated in a discriminatory manner. First,
the Court had erred by making an unwarranted intrusion into the
decision-making realm of the Tribunal. Second, the Court's
reasoning was flawed because it overlooked the fact that the
termination effectively ended Dr. Kelly's prospects of working
as a practicing physician. The Tribunal was aware of prior awards
and decided that Dr. Kelly's situation was unique. Unless the
reviewing court identified a factor that the Tribunal had
overlooked, which suggested that Dr. Kelly's situation was not
unique, it was inappropriate to find the Tribunal's award
This decision clarifies that award ranges crafted from prior
cases are neither determinative nor binding in the context of
damage to dignity awards. The Tribunal has the discretion to order
a high damage to dignity award if it decides that such an award is
warranted by the individual's unique circumstances.
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.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).