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$75,000 Injury to Dignity Award Patently Unreasonable
October 28, 2015
Author(s): Brad N. Cocke

On judicial review, the British Columbia Supreme Court recently overturned the injury to dignity portion of a decision of the BC Human Rights Tribunal. That decision upheld a complaint of discrimination based on the ground of mental disability.

The complainant was a student in the University of British Columbia (UBC) Faculty of Medicine, which operated a post-graduate Residency program. The complainant, who suffered from Attention Deficit Hyperactivity Disorder and Non-verbal Learning Disorder, entered the Residency program after completing an undergraduate degree in medicine. After attempts to accommodate the complainant’s disabilities, the University came to the conclusion that the complainant was unable to meet the standards of the program even with accommodation, and dismissed the complainant from the Residency program.

The Tribunal found that the complainant had established a prima facie case of discrimination, and found that the University had failed in its duty to accommodate the complainant. As a remedy, the Tribunal ordered the University to pay the complainant over $385,000 as compensation for lost wages, and $75,000 for injury to dignity, feelings and self-respect. The Court reviewed the Tribunal’s decision and concluded that the Tribunal’s determinations that the complainant had proven a prima facie case of discrimination and that the University had failed to accommodate the complainant’s disabilities, were reasonable. Having found that the decision on the merits was reasonable, the Court addressed the reasonableness of the remedy portion of the award.

In finding that the Tribunal’s decision to award the complainant $75,000 for injury to dignity was patently unreasonable, the Court noted there is no statutory or de facto cap on the amount that can be awarded for injury to dignity, feelings and self-respect. However, the Court also looked to cases of similar discrimination to find that the award was more than double the previous high of $35,000. Addressing the complainant’s argument that the Tribunal had awarded amounts greater than $35,000, the Court distinguished those cases, noting they involved cases of harassment, mental anguish, or punitive damages. Accordingly, the Court found that the highest award for discrimination based on mental and/or physical disability, was $35,000.

The Court found that while the circumstances before the Tribunal were serious, there was nothing unique about them in the sense that the loss suffered was any greater than that suffered in previous awards. In other words, there was no evidence to support a departure from the quantum awarded in previous decisions.

This case provides an important clarification on how the Tribunal must assess the quantum of awards for injury to dignity. It establishes a barrier to arbitrariness in injury to dignity awards and will require the Tribunal to consider the facts before it, in relation to its previous decisions. The result, is that in order for the Tribunal to make an award that is higher than previous cases, it will have to distinguish facts that are more egregious than in previous cases. This decision should result in more predictable damages awards, and a slowing of the steady increase over time of such awards.

UBC v Kelly

Questions relating to the content of the article may be directed to Kacey Krenn.