Last year, we reported on a decision of the B.C. Human Rights Tribunal which awarded $75,000 in damages for injury to dignity, feelings, and self-respect, more than twice the previous high water mark ($35,000) in similar cases.  The B.C. Supreme Court has now ruled that the $75,000 award was unreasonable in the circumstances.  The decision likely signals at least a pause in the expansion of such awards.

Dr. Kelly was a medical school graduate who had been diagnosed with ADHD and a non-verbal learning disability.  He experienced significant difficulties completing his residency program rotations.  Dr. Kelly consulted various specialists during the 21 months he tried to satisfy the program requirements, and UBC attempted to accommodate him.  However, Dr. Kelly continued to perform below expectations in many of his rotations. Eventually, after further medical assessments, 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 discrimination in employment and in the provision of services customarily available to the public.

The Court upheld the Tribunal’s finding of discrimination.  However, it found that the Tribunal’s damages award for injury to dignity was not justified in the circumstances.

The Court stated that there is no official cap on the amount of damages that can be awarded for injury to dignity, feelings, and self-respect, but nonetheless held that the Tribunal’s award was patently unreasonable in the circumstances of the case.

UBC had argued that the award was excessive for several reasons, including because the Tribunal had overemphasized the fact that Dr. Kelly was engaged in medical training, rather than other types of training or employment.  UBC contended that the award therefore created a two-tiered system - one for professions, and one for mere employees.  The university also argued that the unprecedented award was at odds with the expectations created by previous awards.

The Court agreed with UBC, stating:

While the circumstances are unquestionably “serious”, I see nothing about them that is “unique” in the sense that Dr. Kelly suffered an injury to a greater extent than others who have lost their jobs and/or opportunities as a result of discrimination.  Nor do I see anything to indicate why $75,000 is “reasonably proportionate” to Dr. Kelly’s injury, but apparently too high for those persons who have previously been awarded $35,000 or less.

The fact that Dr. Kelly was in a medical program is not a reasonable basis for more than doubling the previous highest award for similar discrimination.

The Court also pointed out that Dr. Kelly was not the only one dealing with a unique situation.  The educators and committees at UBC were operating in exceptional circumstances, and had made decisions that they considered were in the best interests of the residency program.

The Court sent the issue of the appropriate damages award back to the Tribunal for reconsideration.  It declined to suggest that Dr. Kelly’s award should not be more than $35,000, but noted that it could see no principled reason that his award should be more than double the previous highest award.

This does not mean that such an award might never be granted or upheld; awards for injury to dignity are based on individual circumstances.  However, this decision signalled quite clearly that the mere fact that a complainant was employed or sought employment in a traditionally prestigious field should not, on its own, warrant drastically higher damages.