B.C. Supreme Court overturns largest award for injury to dignity

Province's top court agrees with tribunal's decision but finds amount awarded is too high
By Steve Winder
|employmentlawtoday.com|Last Updated: 11/10/2015

Two years ago, the B.C. Human Rights Tribunal more than doubled its previous highest award for injury to dignity. But the province's top court has overturned that award, finding it too much of an increase from previous awards of this type.

The British Columbia Human Rights Code empowers the province's Human Rights Tribunal 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 as an award for injury to dignity.

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, the tribunal issued a surprising award of $75,000 for injury to dignity. Kelly involved a University of British Columbia (UBC) student with Attention Deficit Hyperactivity Disorder and a non-verbal learning disorder who had been terminated from the university's 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.

The decision in Kelly upwardly influenced awards for injury to dignity. In a case decided earlier this year involving the reprehensible treatment of a housekeeper, the tribunal referenced the decision in Kelly and awarded $50,000 for injury to dignity.

This year, UBC sought a review by the British Columbia Supreme Court of the tribunal's decision in Kelly, arguing that the decision ought to be set aside. In a judgment released last month, the court largely upheld the tribunal's findings, but set aside the $75,000 award for injury to dignity. The court concluded that there was no compelling evidence or rationale that would justify the Tribunal more than doubling the highest award. The Court remitted the matter back to the Tribunal to further consider an appropriate amount for injury to dignity. The court left open the possibility that such an award could be higher than the previous high of $35,000, but made it plain that an award in the magnitude of $75,000 was not reasonable.

It remains to be seen what award will be made by the tribunal when it reconsiders the award. But, likely, the effect of the court's conclusions in Kelly will be to curtail larger awards for injury to dignity, and return awards more closely to the previous high of $35,000.

Steve M. Winder is the regional leader of the Labour and Employment Group for Borden Ladner Gervais in Vancouver. He practises in the areas of employment and administrative law and civil litigation, with a focus on employment litigation. He can be reached at (604) 640-4118 or SWinder@blg.com.

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