The BC Human Rights Code empowers the Human Rights Tribunal to make various financial awards where there has been discriminatory conduct, including in employment cases.
The British Columbia Human Rights Code (the "Code") empowers the Human Rights Tribunal to make various financial awards where there has been discriminatory conduct, including in employment cases. One type of award is for injury to a complainant's "dignity, feelings and self-respect", often referred as an award for injury to dignity.
The Code does not provide for any cap for an award for injury to dignity. Over the years, the amount of awards made by the Tribunal for injury to dignity has slowly creeped upward, but generally remained relatively modest. By 2013, the highest award by the Tribunal for injury to dignity was $35,000.
In a 2013 decision, Kelly v University of British Columbia ("Kelly"), the Tribunal issued a surprising award of $75,000 for injury to dignity. Kelly involved a UBC student with Attention Deficit Hyperactivity Disorder and a Non-verbal Learning Disorder, who had been terminated from its medical residency program. In more than doubling its highest award, the Tribunal found the facts to be unique and serious, including that it was the complainant's life-long passion to be a doctor, and that as a result of the termination, the complainant suffered deep humiliation and isolation from his family, including from his father, who was a doctor.
The decision in Kelly did upwardly influence awards for injury to dignity. In a case decided earlier this year involving the reprehensible treatment of a housekeeper, the Tribunal referenced the decision in Kelly, and awarded $50,000 for injury to dignity.
This year, UBC sought a review by the British Columbia Supreme Court of the Tribunal's decision in Kelly, arguing that the decision ought to be set aside. In a judgment released last month, the Court largely upheld the Tribunal's findings, but did set aside the $75,000 award for injury to dignity. In doing so, the Court concluded that there was no compelling evidence or rationale that would justify the Tribunal more than doubling the highest award. The Court remitted the matter back to the Tribunal to further consider an appropriate amount for injury to dignity. The Court left open the possibility that such an award could be higher than the previous high of $35,000, but made it plain that an award in the magnitude of $75,000 was not reasonable.
It remains to be seen what award will be made by the Tribunal in Kelly, when it reconsiders the award. But, likely, the effect of the Court's conclusions in Kelly will be to curtail larger awards for injury to dignity, and return awards more closely to the previous high of $35,000.
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