B.C. Court of Appeal Restores Highest Ever Human Rights Damages Award: Kelly v. University of British Columbia (No. 4), 2013 BCHRT 302 (CanLII)

July 22, 2016 | Nicole Byres

In early 2014, we reported on a B.C. Human Rights Tribunal decision in which Carl Kelly was awarded $75,000 in damages for injury to dignity, feelings, and self-respect.  This award was and remains the highest amount ever awarded in Canada by a human rights tribunal under this category of damages.  At the time of the Kelly decision, B.C. Human Rights Tribunal awards of damages in British Columbia for injury to dignity and feelings averaged approximately $5,000 with a high of $25,000. On June 24, 2016, the B.C. Court of Appeal reversed the Supreme Court decision and restored the $75,000 damages award.

By way of background, Carl Kelly was a medical student who was terminated from the University of British Columbia’s Medical Residency Program for failure to meet certain standards for some of his residency rotations.  Kelly filed a human rights complaint against UBC, claiming that the university had failed to adequately accommodate his disabilities which included ADHD, non-verbal learning disorder, and intermittent anxiety/depression disorder.  The B.C. Human Rights Tribunal agreed that UBC had not adequately accommodated Kelly and, besides the $75,000 awarded for injury to dignity and feelings, it awarded Kelly over $385,000 for lost wages (for consequential delays in completion of his residency), special damages, costs, and interest.

The university petitioned the B.C. Supreme Court for a judicial review of the Tribunal’s decision and was successful in having the $75,000 damages award quashed on the basis that it was patently unreasonable, and not based on evidence.  On June 24, 2016, the B.C. Court of Appeal reversed the Supreme Court decision and restored the $75,000 awarded by the Tribunal for injury to dignity and feelings.

In its reasons, the Court of Appeal rejected UBC’s submissions that the damages award should be quashed on the basis that they were so much higher than any previous award for injury to dignity, feelings, and self-respect.  The Court of Appeal stated that the Tribunal had discretion to order a high damages award if it felt it was warranted on the facts, and held that it was reasonable for the Tribunal to find that Kelly’s situation was unique, because UBC’s failure to accommodate effectively ended Kelly’s lifelong dream of becoming a doctor.  Further, the court held that the Supreme Court had intruded into the decision-making realm of the Tribunal when it substituted its views for the Tribunal’s as to whether Kelly was more significantly impacted than other claimants.

By confirming that it was not patently unreasonable for the Tribunal to exceed the “range” of damages previously awarded by the Tribunal for injury to dignity, feelings, and self-respect , the  B.C. Court of Appeal confirmed the scope of deference courts should grant to tribunals when making findings of fact and determining damages.  While the Kelly decision re-establishes the high watermark for damages for injury to dignity, feelings, and self-respect, given the reasons of the Court of Appeal, employers will at least be able to argue, in future cases, that any reference to the Kelly award is not binding and should not be followed in subsequent complaints/hearings.


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