In a recent decision, Kelly v. University of British Columbia, 2013 BCHRT 302, the BC Human Rights Tribunal awarded a complainant $75,000 in damages for injury to dignity, feelings, and self-respect. More than double the previous highest award of $35,000, this award sets the new high water mark for this type of damages.
Dr. Kelly was a medical school graduate who was admitted to UBC’s residency program in November 2005. He suffered from ADHD and a non-verbal learning disability, and he experienced challenges in the program as a result. Ultimately he was fired in August 2007, prior to completing the program, and was given two months’ notice.
The impact of the termination on Dr. Kelly’s career was significant: because he had not completed the program, he was not qualified to practice medicine. He had no choice but to abandon his life-long dream of becoming a family physician and try to find a new career path. He conducted an extensive job search, but he faced numerous questions about why he was not practising medicine. He also suffered from depression and loss of self-esteem, and his relationship with family and friends was negatively impacted.
The Human Rights Tribunal found that UBC had discriminated against Dr. Kelly based on his disabilities and it awarded Dr. Kelly $385,000 in damages for lost income, as well as a gross-up for taxes, and various related expenses. The Tribunal then considered the claim for damages for injury to dignity, feelings, and self-respect. Recognizing that these awards are fact-specific and highly contextual, the Tribunal determined that the gravity of the effects of the termination in this case required an award that was beyond what the Tribunal normally orders. An award of $75,000 was determined to be appropriate in these circumstances.
Normally awards for injury to dignity, feelings, and self-respect are modest, and it is rare to see cases where they exceed $25,000. Employers may see this decision as an unsettling precedent for significant awards in future cases. However, there are some unique factors in this case which make it somewhat of an anomaly. Dr. Kelly was particularly vulnerable as he lost his opportunity to practice medicine, a goal that he had spent years and significant resources pursuing. He lost his sense of self-identity, and suffered from depression and isolation as a result of his termination. Few complainants will be as vulnerable as Dr. Kelly, and most instances of discrimination will not result in such severe and far-reaching consequences.
UBC has applied to the Supreme Court of British Columbia for judicial review of this decision. We will report on the result of the judicial review application when the court makes a decision.