British Columbia Court of Appeal Restores Record-high Human Rights Tribunal Damages for Injury to Dignity
We previously reported on the B.C. Human Rights Tribunal’s record-high $75,000 award for injury to dignity, and the subsequent decision of the B.C. Supreme Court that the award was patently unreasonable in the circumstances.
The B.C. Court of Appeal in University of British Columbia v. Kelly has now restored the Tribunal’s original award for injury to dignity, emphasizing that it is for the Tribunal to consider the evidence in each individual case.
Dr. Kelly was a medical school graduate who had been diagnosed with ADHD and a non-verbal learning disability. He experienced significant difficulties while attempting to complete UBC’s residency program. While he actively sought medical treatment, and UBC attempted to accommodate him, he continued to perform below expectations. Ultimately, UBC decided that Dr. Kelly was unsuitable for the program and discharged him with two months’ severance pay.
The Tribunal found UBC’s actions to be discriminatory, and awarded Dr. Kelly $75,000 in damages for injury to dignity, more than twice the previous high water mark for this type of damages. While the B.C. Supreme Court upheld the Tribunal’s finding of discrimination, it found that the Tribunal’s award for injury to dignity was patently unreasonable in the circumstances.
The Court of Appeal dismissed UBC’s appeal on the finding of discrimination, but allowed Dr. Kelly’s cross-appeal on the issue of the dignity award. Dr. Kelly argued that the B.C. Supreme Court should have deferred to the Tribunal’s decision, which was based on principle and supported by the evidence. The Court of Appeal agreed, and restored the Tribunal’s original $75,000 dignity award.
The Court of Appeal stated that a court reviewing a dignity award should not treat such a review like an appeal of damages in the personal injury context. Ranges of awards established in previous cases “play a more diminished role” in the Tribunal’s determination of an award for injury to dignity, and it is not patently unreasonable for the Tribunal to exceed the ranges established by prior cases.
The Court of Appeal also considered whether the Tribunal’s award was based on the evidence. It noted that the Tribunal found that Dr. Kelly had suffered acutely due to the discriminatory termination. Such factual findings, the Court of Appeal held, are properly made by the Tribunal, and it is not appropriate for a reviewing judge to re-weigh the evidence.
The Court of Appeal also found that the B.C. Supreme Court had made two errors in concluding that Dr. Kelly was no more impacted than any other person terminated in a discriminatory manner. First, the Court had erred by making an unwarranted intrusion into the decision-making realm of the Tribunal. Second, the Court’s reasoning was flawed because it overlooked the fact that the termination effectively ended Dr. Kelly’s prospects of working as a practicing physician. The Tribunal was aware of prior awards and decided that Dr. Kelly’s situation was unique. Unless the reviewing court identified a factor that the Tribunal had overlooked, which suggested that Dr. Kelly’s situation was not unique, it was inappropriate to find the Tribunal’s award patently unreasonable.
This decision clarifies that award ranges crafted from prior cases are neither determinative nor binding in the context of damage to dignity awards. The Tribunal has the discretion to order a high damage to dignity award if it decides that such an award is warranted by the individual’s unique circumstances.