BC Court Strikes Down Landmark Award for Injury to Dignity, Feelings, and Self-Respect

October 26, 2015

Author: Victor Ing

On September 24, 2015, the BC Supreme Court struck down the highest damages award that has ever been granted in a human rights complaint in British Columbia for injury to dignity, feelings and self-respect.

This case concerns a human rights complaint brought by Dr. Carl Kelly against the University of British Columbia. Dr. Kelly had been enrolled in UBC’s Family Medicine Residency Program and had been struggling to meet the training requirements in the program due to his medically diagnosed conditions of attention deficit hyperactivity disorder and non-verbal learning disorder.  UBC dismissed Dr. Kelly from the program after having determined that he would not be able to successfully complete the program or be successful in future practice.

On February 19, 2008 Dr. Kelly filed a complaint with the Human Rights Tribunal alleging that UBC discriminated against him on the basis of mental disability. The BC Human Rights Tribunal ruled in favour of Dr. Kelly, finding that UBC had discriminated against him by dismissing him from the program when it had not provided reasonable accommodation of his disabilities to the point of undue hardship.

The Tribunal made a number of awards to compensate Dr. Kelly, including an award of $75,000 for injury to dignity, feelings, and self-respect. This amount was more than double the previous high watermark of $35,000 in similar cases of discrimination involving mental or physical disability. In making this award the Tribunal found that Dr. Kelly’s circumstances were unique and serious, which warranted a substantial award of damages.

UBC sought judicial intervention from the BC Supreme Court to reverse both the finding of discrimination, as well as the various damages awards that were granted to Dr. Kelly. All of the findings and orders of the BC Human Rights Tribunal were upheld except for its ground breaking award for injury to dignity, feelings, and self-respect. The Court set aside this award on the basis that there was no principled reason in Dr. Kelly’s case that justified such an exceptional award.

In striking down the $75,000 award, the Court rejected arguments that Dr. Kelly’s case involved unique circumstances. UBC successfully argued that the Tribunal had placed undue emphasis on the fact that Dr. Kelly was engaged in medical training and was denied entry into his chosen profession. In so doing the Tribunal was elevating awards for complainants who were engaged in professional occupations as opposed to other types of employment.  The Court agreed that, while serious, there was nothing inherently unique about Dr. Kelly’s situation compared to others who had lost their jobs or job opportunities as a result of discrimination.  The fact that Dr. Kelly was in a medical program was not a reasonable basis for more than doubling the previous highest awards for similar discriminatory conduct. As a result, the award was set aside to be remitted back to the BC Human Rights Tribunal to determine the appropriate amount for injury to dignity, feelings, and self-respect.

Although the $75,000 award was found to be unreasonable, the Court was also hesitant to comment on what an appropriate amount should be, and left open the possibility that the Tribunal could still make history by granting an award in excess of $35,000.  This case should continue to attract significant interest until a final award is made for injury to dignity, feelings and self-respect.


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