Just How Much Might Those Hurt Feelings Be Worth In British Columbia? BC Court of Appeal Weighs In

Previously printed in the LexisNexis Labour Notes Newsletter.

The likelihood of parties in British Columbia coming to a mutually agreeable resolution of human rights disputes may have just become more unlikely as a result of the BC Court of Appeal’s recent decision in University of British Columbia v. Kelly, 2016 BCCA 271.

Dr. Kelly, who was a resident in the University of British Columbia’s post-graduate training program for family medicine, had an attention deficit hyperactivity disorder (ADHD) and a non-verbal learning disorder. The BC Human Rights Tribunal found that his disabilities were a factor in the University’s termination of his residency, which constituted discrimination based on a mental disability.  The Tribunal also found that UBC had not accommodated Dr. Kelly as required by law.  Among other remedies, the Tribunal awarded Dr. Kelly over $385,000 as compensation for lost income and $75,000 for injury to dignity, feelings and self-respect.

Overturning an earlier judicial review decision of the BC Supreme Court – which had set aside the Tribunal’s remedial award for injury to dignity, feelings and self-respect on the basis that it was patently unreasonable – the Court of Appeal restored the Tribunal’s decision to award more than twice the amount previously ordered in such remedial awards. In reaching this conclusion, the appellate court made a number of statements that are likely to lead to uncertainty regarding the amount that might be awarded by the Human Rights Tribunal in the future for injury to dignity, feelings and self-respect.  In particular, the Court said:

• Judicial review of injury to dignity awards is not to be approached in the same manner as a quantum appeal in a personal injury case, where the Courts consider whether the award “was a wholly erroneous estimate of the loss by comparison to the range established by the cases”.
• “Ranges established by previous cases play a more diminished role in the Tribunal’s determination of an award for injury to dignity.”
• It is for the Tribunal and not the courts to weigh the impact of discrimination leading to injury to dignity damages, including whether a complainant suffered from “depression, dejection, disturbance with personal relationships, embarrassment and despair”.

When the Tribunal’s remedial award to Dr. Kelly was initially made, complainants routinely demanded $75,000 as compensation for injury to dignity as it was viewed by many to be “the new normal”. It is almost a certainty that employers and others who might be the subject of a human rights complaint will see the return of such significant demands, although it remains to be seen whether the Tribunal will routinely make such awards.

The Court of Appeal commented that although the Tribunal was aware of other awards with lower damages, it decided that Dr. Kelly’s circumstances were different. Of note, the Court suggested that this may have been because the University’s decision “effectively ended the respondent’s prospect of any job as a practicing physician” (emphasis in original).  This is of course a rare circumstance.

Notwithstanding this comment, complainants will no doubt have elevated expectations, focusing primarily on the numerical value of Dr. Kelly’s award rather than the nuances that led to it.  It is these elevated expectations, juxtaposed against the uncertainty of whether the Tribunal will treat Dr. Kelly’s circumstances as a unique situation rather than the  “new normal”, which will make it difficult for parties in BC to resolve disputes informally until a measure of certainty is eventually established by the Tribunal.

The Tribunal’s decisions in the period of time following its remedial decision regarding Dr. Kelly may provide some guidance. For example, in Bratzer v. Victoria Police Department, 2016 BCHRT 50, the complainant relied on the Kelly decision to claim significant damages.  The Tribunal, however, only awarded $20,000 for injury to dignity, feelings and self-respect.

In P.N. v. F.R., 2015 BCHRT 60, the Tribunal awarded $50,000 for injury to dignity, feelings and self-respect but the circumstances there were quite extraordinary.  This can be seen in the following excerpts from that decision:

While working for the respondents, PN was exploited. She had to perform sexual acts at the whim and insistence of her employer, she was humiliated and degraded by her other employer, and she was even made fun of by the children who were in her care.  She was isolated, underfed and treated like she was sub-human; all because she was a young Filipino mother who needed the job to take care of her own children ….

PN’s counsellor testified that she suffered symptoms consistent with post-traumatic stress disorder. She has nightmares and flashbacks still.  She had to flee with nothing; not clothes, not money, not friends.  She had to fend for herself and was lucky enough to find refuge in an institution for victims of human trafficking.  It is hard to imagine the bravery and determination that she required to overcome her treatment at the hands of the respondents.

In addition, the respondents in that case made a number of subsequent efforts to have P.N. returned to either Hong Kong or the Philippines.

Conclusion

There is little doubt that employers and other potential respondents to human rights complaints will be anticipating that the significant damage awards made in the Kelly and P.N. decisions will be reserved to remedy the most serious acts of discrimination rather than becoming the norm.  On the other hand, complainants will almost certainly view those sorts of awards as the new normal.

Until the Tribunal provides further guidance, these conflicting expectations will most likely make informal resolution of human rights disputes more difficult.