This case arose out of the
University of British Columbia's ("UBC") decision to
terminate Dr. Carl Kelly's medical residency due to his
inability to meet various standards. In determining that UBC
had discriminated against Dr. Kelly when it failed to take into
account his various learning disabilities, including an ADHD
diagnosis, the British Columbia Human Rights Tribunal (the
"Tribunal") assessed damages on the basis of Dr.
Kelly's delayed entry into the medical profession as well as on
the basis of "injury to dignity" a common ground of
damages argued in human rights cases.
UBC then appealed this decision to
the British Columbia Supreme Court, arguing both the merits of the
case and the size of the award. While the Supreme Court
upheld the Tribunal's findings of discrimination, it reduced
the size of the award on the basis that it was "patently
unreasonable", being more than twice as high as any other
similar award in the history of the Tribunal's case law.
While the Court acknowledged that the Tribunal should
not be bound by past damage awards, it maintained that "the
decision must still be based on evidence and reason" and that
in the Court's view that had "not occurred in this
case". The Court added that the Tribunal's discretion
"which resulted in that award was exercised
Unfortunately for employers who
keep an eye on these types of awards, the Court of Appeal has
weighed in on the side of the Tribunal. In restoring the
damages award for "injury to dignity", the Court of
Appeal noted specifically that the deference owed to the Tribunal
more than allowed for it to find that Dr. Kelly's case was
unique, and therefore warranted a departure from the other cases
and the previous awards.
While we are always aware that
human rights tribunals have broad discretion to award damages as
they see fit, employers have long been able to take solace in the
idea that, at least with respect to the "intangible
damages" – like injury to dignity – there was a
general expectation that such damages would be reasonably limited,
and that, for a long time, no decisions sought to expand those
limitations. However, the potential for larger awards to
start flowing from this decision cannot be ignored, even if it is
(at this point) limited to a single decision of the British
Columbia Human Rights Tribunal.
The lawyers at CCPartners are
well-versed in assisting employers with navigating all types of
human rights issues and complaints. Click here for a list of experienced lawyers at
CCPartners who can help.
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