$75,000 award for injury to dignity = “patently unreasonable”

Previously printed in the LexisNexis Labour Notes Newsletter

In January 2014, we reported on Kelly v. University of British Columbia (No. 4), 2013 BCHRT 302, a case in which the B.C. Human Rights Tribunal (the “Tribunal”) more than doubled its previous record for injury to dignity damages by awarding the complainant $75,000 (the “Tribunal Decision”).

In University of British Columbia v. Kelly, 2015 BCSC 1731, the B.C. Supreme Court (the “Court”) considered the University’s application for judicial review of the Tribunal Decision. The Court dismissed the University’s application except in relation to the injury to dignity award, which it set aside.

In its lengthy reasons, the Court clarified some important concepts about the Tribunal’s standing in judicial review proceedings, the applicable standard of review, the analytical framework to be applied in discrimination cases, and remedial matters.

Tribunal Standing

The Court granted the Tribunal limited standing to participate in this judicial review. It was only permitted to:

• outline the proceedings which were before it, and the issues on judicial review;
• make submissions about the Court’s role on judicial review, the standards of review, and the relief available on judicial review; and
• make submissions about whether the questions to be answered on judicial review were questions of fact, law, or mixed fact and law.

Standard of Review

The Court thoroughly reviewed the law in this area and held that:

1. i) The following issues involved findings of fact which were reviewable on the reasonableness standard:
2. a) whether there is a nexus between adverse treatment and a prohibited ground of discrimination;
3. b) whether a prima facie case of discrimination has been proven;
4. c) whether the duty to accommodate to the point of undue hardship has been met; and
5. d) the relevance and weighting of witness evidence.
6. ii) The following issues involved findings of law, or mixed fact and law, which were reviewable on the correctness standard:
7. a) whether the Tribunal applied the correct analytical framework in deciding whether prima facie discrimination occurred; and
8. b) whether the Tribunal had proper regard for the procedural component of the duty to accommodate.

iii) The following issue involved discretionary findings which were reviewable on the patently unreasonable standard:

1. a) the appropriate remedy for a breach of the B.C. Human Rights Code.

Analytical Framework

The University argued that the Tribunal erred in law by considering its efforts to accommodate Dr. Kelly, and by engaging in the thoughtful process that led to his dismissal, as part of its bona fide occupational requirement (BFOR) and bona fide and reasonable justification (BFRJ) analysis, rather than at the second stage of the analysis for prima facie discrimination (i.e. whether there was adverse treatment). The Court held that the Tribunal applied the correct analytical framework.

The University argued that the Tribunal erred in law by improperly considering a procedural duty to accommodate. The Court accepted the following language of the Tribunal to be a correct statement of the law:

[I]t is relevant to consider both the accommodation process and the reasons for Dr. Kelly’s dismissal in assessing, in a holistic manner, whether UBC has satisfied its duty to accommodate.

Remedial Matters

The Court held that the wage loss remedy awarded in the Tribunal Decision was not patently unreasonable but the $75,000 injury to dignity award was. In doing so, the Court noted that there is no statutory cap on the amount that can be awarded under this head of damages but disagreed with the Tribunal’s conclusion that Kelly was a “unique” case.

The Court also found no reason for the Tribunal’s conclusion that $75,000 was “reasonably proportionate” to Dr. Kelly’s injury when all other similarly situated complainants were awarded $35,000, or less, for similar injury.

The Court recognized that the Tribunal is entitled to “great deference” in its remedial awards and that its past damages awards do not prevent it from adequately compensating a complainant. However, it saw no reason to support an award that more than doubled its previous record for injury to dignity damages:

[T]he decision must still be based on evidence and reason and in my view that has not occurred in this case.

….

… I see no evidence, finding, submission or principle which could support the conclusion that the award for this injury should be more than double the amount of the previous high for a similar injury.

The Tribunal’s decision to award $75,000 is not based on principle and cannot be supported by the evidence. In my view, the discretionary decision which resulted in that award was “exercised arbitrarily” as those words have been interpreted in s. 59(4) of the ATA. That section also denoted that such a decision is patently unreasonable.

After finding the injury to dignity award to be patently unreasonable, the Court applied settled law and ordered the Tribunal to reconsider its award.

Employer Take-Away Tribunal awards for injury to dignity are on the rise. Since the Tribunal Decision was issued at the end of 2013, the Tribunal has made other injury to dignity awards of $35,000. It has also made an award of $50,000 in PN v. FR and another (No. 2), 2015 BCHRT 60.

We anticipate that the Tribunal, on reconsideration, will adjust the award in Kelly to something in the $50,000 range. If it does so, one can expect similar awards for other common situations in which an employer, in good faith, fails to satisfy the Tribunal that it could not accommodate without undue hardship. Employers in British Columbia will need to be mindful of this when they develop and implement their accommodation and litigation strategies.