Written by Michael J Weiler

B.C. COURT OF APPEAL RESTORES $75,000 AWARD FOR INJURY TO DIGNITY – UBC v Kelly 2016 BCCA 271

The B.C. Human Rights Tribunal has statutory authority to award a complainant an amount “to compensate that person for injury to dignity, feelings and self-respect or to any of them”.In the August 31st, 2014 edition of the Weiler Law Blog we reported on a case involving a doctor who successfully won his complaint against UBC. He was awarded 6 years back pay amounting to $385,194.70 as compensation for lost wages, as well as an award for expenses, a tax gross-up and pre and post-judgment interest. Most importantly in a groundbreaking decision the Tribunal also awarded him $75,000 for injury to dignity, feelings and self-respect. This was more than double the previous highest award. B.C. HUMAN RIGHTS TRIBUNAL DOUBLES CAP FOR DAMAGES FOR HURT FEELINGS TO $75,000In our November 2nd, 2015 blog update we reported on the judicial review decision of Mr. Justice Silverman. The court upheld the finding of liability and also the large damage award. However it struck down the $75,000 award. HUMAN RIGHTS UPDATE—SOME GOOD NEWS FOR EMPLOYERS….MAYBE Not surprisingly UBC appealed and Dr. Kelly cross-appealed the reduction of the $75,000 award.On June 24th 2016 the BC Court of Appeal issued its decision. It dismissed UBC’s appeal on the merits and upheld the Tribunal’s decision that there had been discrimination and that UBC had not accommodated Dr. Kelly to the point of undue hardship. It dismissed the appeal on the large wage loss award. However it allowed the cross-appeal and restored the Tribunal’s award of $75,000 for damages to injury to dignity, feelings and self-respect.The decision is definitely not good news for employers. Mr. Justice Ian Donald writing for the court dismissed all of UBC’s arguments on why the decision on liability was wrong. It upheld for example the Tribunal’s “holistic approach” in considering both the accommodation process (i.e. the procedural aspects) as well as the reasons for dismissal (i.e. the substantive aspects). The court held this holistic approach did not offend the law that “there is no free-standing procedural duty”. Further the lost wages award was based on the calculation of damages resulting from “delayed entry” into the program. Although this was a case of first impression it was nevertheless within the Tribunal’s discretion and was justified because of the clear causal link between the discrimination and the delayed entry.But the biggest concern for employers is the court’s acceptance that the Tribunal was entitled to find that $75,000 was justified. The court pointed out that judicial review is “not to be treated as though it were a quantum award in a personal injury case.” Ranges of awards established in previous decisions of the Tribunal “play a more diminished role in the Tribunal’s determination of an award for injury to dignity.”What is troubling in my view with the Tribunal’s decision and the court’s decision on this point is that there is very little analysis of how the 3 separate items are to be interpreted and applied. And is the court saying that this case was so unique that the award is justified but in most cases this award would be excessive?In my August 31st, 2014 blog reviewing the Tribunal’s original decision I suggested that given the courts’ reluctance to interfere with Tribunal decisions it would be unlikely the decision would be overturned. While I was wrong with respect to the BC Supreme Court the ultimate decision of the Tribunal has been upheld on all aspects. I also commented on the lack of certainty created by this decision and the negative effect that will have on employers. Absent a legislative amendment to the Code placing a cap on these damages that uncertainty is even more troublesome having the Court of Appeal’s stamp of approval.