Turning of the Tides? Record Setting Human Rights Damage Award Overturned in British Columbia

Over the past few years, we have seen a number of cases in Canada where human rights tribunals have awarded record setting damage awards. In many of these cases, the damages have greatly exceeded what a Court would be prepared to award in a wrongful dismissal case. In a recent judicial review decision out of British Columbia, University of British Columbia v. Kelly, one such damage award was set aside.

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 non-verbal learning disability.  As a result of his treatment by the medical school, the British Columbia Human Rights Tribunal found he suffered embarrassment and humiliation, and eventually his participation in the program was terminated.  Six years after that termination, he was re-admitted 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 GP at his father’s clinic.  Over six years, the Tribunal found that the difference was roughly $385,000.  While this is high, and covers a longer period than most limitations statutes would allow, the size of the award is in large part due to the higher wages earned by doctors as compared to the litigants in other human rights cases.

Most surprisingly, the Tribunal awarded $75,000 in general damages for loss of dignity, self-respect, and hurt feelings, which is one of the highest awards by any human rights tribunal in Canada. Although the effect of the discrimination was nullified by the re-admission 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, self-respect, and 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’s 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, self-respect and 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 high water mark.

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 any 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.

Damage awards are an area where human rights tribunals are afforded great deference by the courts. 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.