Under the Code, the Human Rights Tribunal is authorized 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 to 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.
UBC sought a review by the B.C. Supreme Court of the
Tribunal's decision in Kelly; arguing that the decision ought
to be set aside. In 2015, the chambers judge largely upheld the
Tribunal's findings, but did set aside the $75,000 award for
injury to dignity. In doing so, the chambers judge concluded that
there was no compelling evidence or rationale that would justify
the Tribunal more than doubling the highest award. The chambers
judge remitted the matter back to the Tribunal to further consider
an appropriate amount for injury to dignity.
In a judgment released in June, the B.C. Court of Appeal held
that the chambers judge had erred by setting aside the $75,000
award. The Court of Appeal differentiated an award for injury to
dignity from a quantum appeal in a personal injury case, where the
loss caused by the injury is compared against a range established
by the case. In the case of injury to dignity awards, the Court of
Appeal recognized that there is no cap, and that while previous
awards are of some precedential value, the Tribunal should not be
prevented from adequately compensating a complainant for their
actual injury to dignity. The Tribunal had found in this case that
the complainant's injury was unique; the Court of Appeal agreed
and held that the chambers judge erred by likening the situation to
any other victim of discrimination who lost a job. The Court of
Appeal emphasized that the complainant's termination ended his
prospect of any job as a practicing physician.
Accordingly, the Court of Appeal restored the Tribunal's
The Court of Appeal's decision provides clear support for
the trend of rising human rights damages in B.C. and in Ontario.
While any award for injury to dignity must be supported by the
evidence, the Court of Appeal has signalled that no upper limit
will be imposed on the Tribunal's ability to compensate
complainants for their actual injury.
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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