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2013 Ends with a Bang: $75,000 Award for Injury to Dignity Sets High Water Mark

January 2014

Article by: Michael Wagner

Previously printed in the CCH’s Focus on Canadian Employment and Equality Rights (CEER) Newsletter – January, 2014

Kelly v. University of British Columbia (No. 4), 2013 BCHRT 302, was released on December 17, 2013. In it, the B.C. Human Rights Tribunal (the “Tribunal”) decided the appropriate remedy for the discrimination it had found in an earlier decision. In addition to awarding the complainant wage loss of almost $400,000, the Tribunal more than doubled its previous record for injury to dignity damages by awarding the complainant $75,000.

Background

After completing his medical degree, Dr. Kelly was enrolled in the University’s medical residency program (the “Program”) but was having difficulties due to ADHD and a non-verbal learning disability. The University sought and obtained medical information about Dr. Kelly so that it could better understand his circumstances, and implemented various supports and accommodations to help him succeed in the Program. Unfortunately, Dr. Kelly continued to struggle and, in August 2007, he was terminated from the Program for unsuitability. This resulted in his termination from employment by Providence Health Care Society since Providence could only employ doctors who were enrolled in the Program.

In Kelly v. University of British Columbia (No. 3), 2012 BCHRT 32, the Tribunal held that the University had discriminated against Dr. Kelly in its provision of a service customarily available to the public (academic training), contrary to section 8 of the B.C. Human Rights Code (the “Code”). It also held that, even though the University had never employed Dr. Kelly, it discriminated against him in his employment, contrary to section 13 of the Code.

In the Tribunal’s analysis, section 13 applied because the employment and educational relationship between the University, Providence and Dr. Kelly was “intermingled and related” and because the University exercised “pervasive and determinative” control and influence over Dr. Kelly’s employment by Providence [at para. 468].

After this decision was issued in February 2012, Dr. Kelly was reinstated to the Program and, with accommodations in place, is progressing through it.

 Remedy

Wage Loss

At the hearing, Dr. Kelly claimed past and future wage loss based on his delayed entry into practice as a family physician.

The Tribunal accepted that Dr. Kelly’s potential employment as a physician had been delayed by 6 years. It awarded him the difference between what he would have made had the delay not occurred and what he would make because of the delay, less a contingency deduction to reflect the possibilities that he might not complete the Program and/or that he might not practice as a full-time physician. This amounted to $385,194.70. However, the Tribunal declined to order an award for future wage loss since there was no evidence that, apart from the delay for which he was compensated, he would suffer any impairment in future earning potential as a result of the discrimination.

Injury to Dignity, Feelings and Self-Respect

The Tribunal held the following factors to be relevant to its assessment of damages for injury to dignity:

  1. Dr. Kelly’s medical practice was significantly delayed;
  2. He had a life-long passion for medicine and, in the context of his family dynamics, his delay had a serious and detrimental impact on him;
  3. Dr. Kelly suffered deep humiliation and embarrassment, loss of self-identity and despair about his future;
  4. Dr. Kelly encountered barriers to obtaining alternate employment;
  5. He felt compelled to move back in with his parents;
  6. Dr. Kelly’s relationships became strained; and
  7. Dr. Kelly depended on the University to accommodate him.

The Tribunal held that “the gravity of [the] effects of the discrimination in this case warrant[ed] a substantial award for damages for injury to dignity, feelings and self-respect which is beyond the highest award that has yet been made by this Tribunal” [at para. 100]. In conclusion, the Tribunal awarded Dr. Kelly $75,000 damages for injury to dignity.

Employer Take-Away

There is no cap on injury to dignity awards under the Code. They have gradually increased over the years with a previous high, in 2008, of $35,000. The most striking aspect of this Kelly remedy award is that the high-water mark has been more than doubled with a single decision. It is also noteworthy that while the conduct was retrospectively deemed to be discriminatory, it was not egregious and was undertaken in good faith.

In our view, 2014 is likely to bring more injury to dignity awards in excess of $50,000 and parties to human rights litigation in British Columbia will need to be mindful of this when they develop and implement their litigation strategies.