In early 2014, we reported on a B.C. Human Rights Tribunal decision in which
Carl Kelly was awarded $75,000 in damages for injury to dignity,
feelings, and self-respect. This award was and remains the
highest amount ever awarded in Canada by a human rights tribunal
under this category of damages. At the time of the
Kelly decision, B.C. Human Rights Tribunal awards of
damages in British Columbia for injury to dignity and feelings
averaged approximately $5,000 with a high of $25,000. On June 24,
2016, the B.C. Court of Appeal reversed the Supreme
Court decision and restored the $75,000 damages award.
By way of background, Carl Kelly was a medical student who was
terminated from the University of British Columbia's Medical
Residency Program for failure to meet certain standards for some of
his residency rotations. Kelly filed a human rights complaint
against UBC, claiming that the university had failed to adequately
accommodate his disabilities which included ADHD, non-verbal
learning disorder, and intermittent anxiety/depression
disorder. The B.C. Human Rights Tribunal agreed that UBC had
not adequately accommodated Kelly and, besides the $75,000 awarded
for injury to dignity and feelings, it awarded Kelly over $385,000
for lost wages (for consequential delays in completion of his
residency), special damages, costs, and interest.
The university petitioned the B.C. Supreme Court for a judicial
review of the Tribunal's decision and was successful in having
the $75,000 damages award quashed on the basis that it was patently
unreasonable, and not based on evidence. On June 24, 2016,
the B.C. Court of Appeal reversed the Supreme Court decision and
restored the $75,000 awarded by the Tribunal for injury to dignity
In its reasons, the Court of Appeal rejected UBC's
submissions that the damages award should be quashed on the basis
that they were so much higher than any previous award for injury to
dignity, feelings, and self-respect. The Court of Appeal
stated that the Tribunal had discretion to order a high damages
award if it felt it was warranted on the facts, and held that it
was reasonable for the Tribunal to find that Kelly's situation
was unique, because UBC's failure to accommodate effectively
ended Kelly's lifelong dream of becoming a doctor.
Further, the court held that the Supreme Court had intruded into
the decision-making realm of the Tribunal when it substituted its
views for the Tribunal's as to whether Kelly was more
significantly impacted than other claimants.
By confirming that it was not patently unreasonable for the
Tribunal to exceed the "range" of damages previously
awarded by the Tribunal for injury to dignity, feelings, and
self-respect , the B.C. Court of Appeal confirmed the scope
of deference courts should grant to tribunals when making findings
of fact and determining damages. While the Kelly decision
re-establishes the high watermark for damages for injury to
dignity, feelings, and self-respect, given the reasons of the Court
of Appeal, employers will at least be able to argue, in future
cases, that any reference to the Kelly award is not binding and
should not be followed in subsequent complaints/hearings.
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