The British Columbia Human Rights Code, like human rights legislation in other provinces, prescribes a number of remedies once the B.C. Human Rights Tribunal determines that a human rights violation has occurred. Besides authorizing the tribunal to make declaratory judgments — such as reinstatement of employment or orders to cease the discriminatory behaviour — the tribunal also has the ability to award damages to claimants for wages lost, expenses incurred, and for injury to dignity, feelings and self-respect (or for any of them).
In December 2013, the tribunal released its decision Kelly v. University of British Columbia, in which it awarded $75,000 for injury to dignity, feelings and self-respect — the highest amount of damages ever awarded in this category by far. Further, because of the facts and amount of damages awarded, the Kelly decision will likely affect how human rights lawyers’ weigh the risk and potential amount of damages that could be awarded for injury to dignity in the future.
The Kelly decision does not involve a typical employment relationship: Carl Kelly was a medical student who was terminated from the University of British Columbia’s (UBC) medical residency program for failure to pass certain rotations, and a complaint from fellow students. At the time of his termination, UBC paid Kelly two months’ pay in lieu of notice. In response, Kelly filed a human rights complaint against UBC, claiming the university had failed to adequately accommodate his disabilities (ADHD, non-verbal learning disorder, and intermittent anxiety/depression disorder). Besides a reinstatement into the residency program, Kelly sought damages for loss of income based on delayed entry into the medical profession as a fully qualified physician, and damages for injury to dignity.
In its 2012 decision on liability, Kelly v UBC (No.3), the tribunal found that even though UBC had tried to accommodate Kelly’s disabilities, its ultimate decision to terminate Kelly’s residence was based on an inadequate analysis of whether or not it could accommodate Kelly’s disability, and a flawed assessment of whether or not he could successfully complete the requirements of UBC’s medical residency program.
Injury to dignity awards are considered compensatory, not punitive. However, prior to this decision, many of the previous cases in which significant damages were awarded in this category involved discriminatory behaviours that were particularly outrageous or prolonged. In Kelly, the tribunal concluded that the gravity of the effects of the discriminatory behaviour — the failure to accommodate his disabilities and termination from the medical residency program — warranted a substantial award beyond the highest that had ever been made by the tribunal.
The tribunal noted the following considerations when making its decision:
• Dr. Kelly lost (at least temporarily until the tribunal ordered reinstatement into the program) the opportunity to complete his residency training which prevented him from practising in his chosen profession.
• The discrimination resulted in a serious and detrimental effect on Dr. Kelly because of his life-long passion to become a doctor like his father.
• Dr. Kelly suffered deep humiliation, embarrassment and loss of self-esteem as a result of being ejected from the residency program and from the resulting uncertainty about his future.
• Dr. Kelly experienced further embarrassment when applying for jobs and explaining why (given his educational background) he was not pursuing his medical career.
• The barriers Dr. Kelly encountered in obtaining alternate employment because of the specialized nature of his skills and education and the perception that he was overqualified for the jobs he applied for.
• Dr. Kelly was required to move back in with his parents for financial reasons.
• Dr. Kelly’s relationships with his family and friends became strained and he isolated himself socially.
• Dr. Kelly was in a vulnerable position as both a student and medical resident so he was dependent upon UBC to reasonably accommodate his disabilities in order to finish his residency.
There are several reasons this decision is troubling from an employer’s perspective: the tribunal relied heavily on Dr. Kelly’s subjective evidence of both the causal connection and the effect the premature termination of the residence program, had on him; the tribunal accepted Dr. Kelly’s father’s evidence that his son’s disabilities could be accommodated in a family medical practise without question as to a father’s bias; and the fact that previous tribunal awards for damages for injury to dignity averaged $5,000, with awards of $25,000 being considered high.
This decision has implications for other employers, particularly those who may have employees engaged in a course of study or program, particularly those programs which require practicums or work experience before the employee can qualify for a license such as law, accounting, trades apprenticeships, and various medical programs. Unfortunately, the Kelly decision provides little guidance on how the employer’s actions in this case (and its high damages award for injury to dignity) can be distinguished from other fact patterns. What is clear however, is the range of damages under this category of claim has now increased significantly, and this increased range will likely influence damage awards for injury to dignity, feelings and self-respect in the future.
For more information see:
• Kelly v. University of British Columbia, 2013 CarswellBC 3835 (B.C. Human Rights Trib.).
Nicole Byres is a partner and head of the Labour and Employment Group in Miller Thomson's Vancouver office. She can be reached at (604) 643-1264 or firstname.lastname@example.org.