UBC v Kelly: VSLO successfully argues injury to dignity damages are not subject to a cap

The BC Court of Appeal recently restored the highest-ever award of damages by the BC Human Rights Tribunal (“Tribunal”) for injury to dignity in a discrimination case. In University of British Columbia v. Kelly, 2016 BCCA 271, the Court of Appeal reversed the Supreme Court of British Columbia’s decision to set aside the Tribunal’s original award.

The appellant, University of British Columbia, had dismissed Dr. Carl Kelly from his position as a resident in its post-graduate family medicine program. Dr. Kelly successfully complained to the Tribunal, which found in Kelly v. UBC (No. 3), 2012 BCHRT 32 that UBC had discriminated against him based on his disabilities. The Tribunal ordered UBC to reinstate Dr. Kelly. In a subsequent decision, Kelly v. UBC (No. 4), 2013 BCHRT 302, the Tribunal awarded him damages for lost earnings and injury to dignity. The $75,000 injury to dignity damages were significantly greater than the previous high of $35,000, awarded in Senyk v. WFG Agency Network (BC) Inc., 2008 BCHRT 376. UBC sought judicial review.

In University of British Columbia v. Kelly, 2015 BCSC 1731, the Supreme Court upheld the Tribunal’s decision and the wage loss damages but reduced the award for injury to dignity. According to the Supreme Court, the Tribunal’s decision to “more than double the previous high” was “patently unreasonable in all the circumstances” as there was nothing particularly unique about Dr. Kelly’s situation.

UBC appealed, arguing that the Tribunal had erred in its discrimination analysis and in determining whether UBC had met its duty to accommodate. UBC also argued that the award for damages for lost earnings was patently unreasonable. Dr. Kelly cross appealed the reduction of the award for injury to dignity.

Decision upholding the finding of discrimination

At the Court of Appeal, UBC alleged that the Tribunal had made several errors of fact and law, including in refusing to consider modifications of the residency program as relevant to finding that disability was a factor in Dr. Kelly’s adverse treatment and in considering both the procedural and substantive elements of the duty to accommodate.

The Court of Appeal rejected these arguments and upheld the finding of discrimination. At paragraph 26, the Court of Appeal confirmed that the consideration of accommodation measures taken by the employer should not be collapsed into the assessment of whether a prima facie case of discrimination is made out. Such an approach would be inconsistent with the Human Rights Code:

…the proposition that the appellant should have been allowed to argue its accommodation at the prima facie stage works an unfairness on complainants, duplicates the adjudication of an issue, and introduces an extraneous element—intention—into an objective analysis.

The Court also held that the Tribunal’s finding—and the trial judge’s decision not to interfere with it—that there was a nexus between Kelly’s adverse treatment and his disability was reasonable, as there was “ample evidence in the record” to support it (para. 36).

In addition, the Court endorsed the Tribunal’s consideration of both the procedural and substantive components of UBC’s accommodation efforts. Finally, the Court declined to engage in a de novo review of the Tribunal’s finding that UBC had not fulfilled its duty to accommodate Dr. Kelly to the point of undue hardship.

Decision on remedy

One of the most significant aspects of this decision is the Court of Appeal’s finding that the unprecedented injury to dignity award was not patently unreasonable, overturning the Supreme Court on this point. The Court of Appeal found that the award was consistent with established legal principles, emphasizing that there is no cap on such awards under the Human Rights Code. It also held that award ranges established through the jurisprudence “play a more diminished role in the Tribunal’s determination of an award for injury to dignity” than they do in, for example, a quantum appeal in a personal injury case (para. 60).

Moreover, the injury to dignity award was based on the evidence, which showed that Dr. Kelly had “suffered acutely” because of the termination (para. 62). In rejecting the BC Supreme Court’s reasoning, the Court of Appeal pointed out that “the termination effectively ended the respondent’s prospect of any job as a practising physician. The Tribunal was aware of the other awards and decided that this case was different” (emphasis original, para. 63).

The Court of Appeal also upheld the lost wages award, holding that “the novelty of the remedy is not, absent any error in principle or arbitrariness, a ground for interfering with it” (para. 55).

This decision clearly signals that the courts ought to defer to the Tribunal’s assessment of damages even when that assessment falls outside the bounds of previous awards, so long as the assessment is based on evidence. The case will undoubtedly be useful for complainants to argue that they should be granted larger awards where warranted on the evidence. It also provides a reminder that employers or service providers are responsible for the reasonably foreseeable consequences of discrimination.

Dr. Kelly, a member of the Professional Association of Residents of British Columbia, was represented by Marjorie Brown of VSLO through the UBC internal appeal processes, a related grievance, and at the Tribunal where the original award was obtained. At the Supreme Court and Court of Appeal, Kelly was represented by Allison Tremblay and Craig Bavis of VSLO. They thank Zosia Hortsing, summer research student, for this summary.