Damages awarded for injury to dignity, feelings and self-respect under the British Columbia Human Rights Code (the "Code") appear to be on the rise again following the B.C. Human Rights Tribunal's recent remedy decision in Kelly v. University of British Columbia.1
Such damages are intended to be compensatory and not punitive. Prior to the Kelly decision, the unofficial, but generally adhered to maximum amount awarded as damages for injury to dignity by the Tribunal was $35,000. However, the Kelly decision dramatically increased this amount, and in doing so provided a strong reminder that there is no legislative cap to the amount that may be awarded for this type of damages under the Code.
The complainant had been enrolled in the Family Practice Residency Program (the "Program") at the University of British Columbia ("UBC") in its rural program. He suffered from Attention Deficit Hyperactivity Disorder and a non-verbal learning disability and was struggling to succeed in the rural Program, failing his first rotation. UBC attempted to accommodate the complainant by moving him out of the rural Program to Vancouver and providing increased supervision and mentorship. The complainant did complete some rotations however he continued to struggle and following an inappropriate email sent by the complainant to his fellow residency students, concern arose over his suitability to continue in the Program. The complainant was placed on a leave of absence and was required to undergo medical assessments, which resulted in recommendations for accommodation. However, UBC determined that it was unable to accommodate the complainant without breaching the required College of Family Physicians of Canada residency guidelines and suffering undue hardship, and accordingly terminated him from the Program. This subsequently led to his dismissal from his employment with the Providence Health Care Society (which was conditional on his participation in the Program).
In an earlier decision, the Tribunal determined that UBC had discriminated against the complainant on the basis of disability in contravention of both section 8 (discrimination in accommodation, service and facility) and section 13 (discrimination in employment) of the Code by terminating him from the Program. The Tribunal held that UBC failed to prove it could not have reasonably accommodated the complainant, finding that, among other things, UBC's conclusion that it would suffer undue hardship was not grounded in clear and factual evidence.
In the Tribunal's remedy decision in Kelly, the complainant sought damages for lost wages and injury to dignity. The Tribunal determined the complainant's entry into the medical profession had been delayed for six years as a result of UBC's actions and awarded over $385,000 in lost wages for that period of delay. However, the most significant aspect of this remedy decision was the Tribunal's decision to award the complainant damages for injury to dignity of $75,000, an amount more than double the previous high watermark for such damages.
In determining that such an unprecedented and significant award was warranted in this case, the Tribunal pointed to the following factors, among others:
- the complainant had been delayed for six years in entering the career of his choice and for which he expended a lot of time and money;
- being a physician was a life-long passion for the complainant and accordingly the discrimination was especially detrimental to him;
- he suffered humiliation, depression and other health issues and the discrimination had a severe impact on his self-esteem and self-identity for an ongoing and prolonged period;
- the complainant had difficulty securing alternative employment based on concerns over why he was not in the medical profession or that he was overqualified;
- he had to move back home with his parents and his personal relationships suffered; and
- he was in a particularly vulnerable position as a student and an individual with a disability.
Although the Tribunal expressly stated in Kelly that this was a particularly unique and serious case for the above-mentioned reasons, this decision may signify a trend of increasing damage awards for injury to dignity in human rights cases. Awards for injury to dignity have historically rarely been above $20,000. In any event, this case serves as an important reminder to employers of the vast remedial powers of the Tribunal and the unpredictability of damage awards in human rights cases. Employers should make sure they have considered all reasonable accommodations, including through consultation with the employee, and have clear and factual evidence of any undue hardship. The consequences for failing to do so may be costly.
Footnote
1 2013 BCHRT 302
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