By Jessica Young
Over the past few years, a number of human rights tribunals in Canada have awarded record-setting damages awards to employees who were subject to discrimination in the workplace. In many of these cases, the damages greatly exceeded what a court would be prepared to award in a wrongful dismissal case. A recent judicial review decision out of British Columbia set aside one such damages award.
Human Rights Tribunal Decision
The applicant was a student in the University of British Columbia (UBC) medical school residency program. He suffered from ADHD and a nonverbal learning disability. As a result of his treatment by the medical school, the British Columbia Human Rights Tribunal found that he suffered embarrassment and humiliation, and eventually his participation in the program was terminated. Six years after that termination, the student was readmitted to the program following an earlier tribunal decision that found that UBC’s treatment of him was discriminatory.
In determining lost wages, the tribunal awarded the difference between the earnings the applicant actually received and what he would have made had he completed the program and moved on to work as a general practitioner at his father’s clinic. Over six years, the tribunal found that the difference was roughly $385,000. This award covers a longer period than most limitations statutes would allow, and the size of the award is in part due to the higher wages earned by doctors as compared to litigants in other human rights cases.
Most surprising, the tribunal awarded $75,000 in general damages for loss of dignity and self-respect, and for hurt feelings; it is one of the highest awards by any human rights tribunal in Canada. Although the effect of the discrimination was nullified by the readmission of the applicant into the residency program, the tribunal found that the applicant was for a time unable to enter into his chosen profession because of the discrimination and that he had suffered serious social and employment consequences. The tribunal did not offer any detailed explanation as to why this case merited a larger award than had previously been awarded.
Human rights tribunals in Canada are empowered to award general damages for human rights violations. These damages are intended to compensate the victims of discrimination for the loss of dignity and self-respect, and for hurt feelings, caused by discriminatory actions. These damages have historically ranged from $500 to $15,000, with an unofficial high range established from $25,000 to $40,000.
Decision on Judicial Review
UBC applied for judicial review of the tribunal decision on both the merits and remedy. The Supreme Court of British Columbia upheld the tribunal decision on the merits.
With respect to remedy, the court upheld the award of compensation for lost wages. However, the court set aside the award for loss of dignity and self-respect, and for hurt feelings. The previous highest award for discrimination on the basis of mental and/or physical disability awarded by the tribunal was $35,000. The court reasoned that although the human rights violation was serious, there was nothing unique about these circumstances to award more than double the previous highest award for similar discrimination.
The court noted that the tribunal should not be bound by past damages awards as to prevent it from adequately compensating a complainant. It emphasized that it was not suggesting that the award should not be more than $35,000. However, it found that an award of $75,000 was not supported by the evidence in this particular case.
University of British Columbia v. Kelly, 2015 BCSC 1731.
Professional Pointer: Damages awards are an area where human rights tribunals are afforded great deference by the courts. Although awards in Canada are typically significantly lower than in similar cases in the United States, the upward trend is building momentum. The general damages award in this case greatly exceeded the norm, leading the court to conclude that it was unreasonable. It will be interesting to see the impact of this decision on future awards in British Columbia and other jurisdictions across Canada.
Jessica Young is a lawyer with the firm of Stringer LLP, the Worklaw® Network member in Toronto.