The B. C. Human Rights Code (“Code”) provides a unique remedy in section 37. The Tribunal may award an amount “to compensate that person for injury to dignity, feelings and self-respect or to any of them.” This provision was introduced in 1992 to remove a cap of $2,000 that the statute prescribed: see Dupuis v BC [1993] BCCHRD No. 43. Despite the cap being removed, awards for injury under this heading were often minimal. In 2006 things began to change, with the Tribunal awarding $25,000 under this heading, followed by a then-record award of $35,000 in 2009. That was generally considered the cap but, as in pro sports, that cap often moves upwards.

In Kelly v UBC (No. 4), 2013 BCHRT 302 the Tribunal awarded Dr. Carl Kelly over $400,000 in lost wages and other compensation PLUS, without much analysis, a record $75,000 for injury to dignity, feelings and self-respect. This award is a game changer and will, in my view, result in the Tribunal making similar awards in other cases and, further, the Tribunal will likely continue to raise this ‘unofficial cap’. In turn this will likely make it much harder for employers to settle cases where the wage loss is minimal, as complainants and their counsel will be more likely to pursue such claims even if they have found alternate employment and do not wish to be reinstated.

Kelly was a medical student at UBC who suffered from ADHD and a non-verbal learning disability. He was terminated from the UBC Program in 2007 for unsuitability and his employment as a resident was terminated by Providence Health Care Society. He was successful 5 years later in his claim against UBC when, in February 2012, the Tribunal in a 140-page decision found that UBC had violated the Code: see Kelly v UBC (No. 3) 2012 BCHRT 32. He was then readmitted to the Program and, with accommodations in place, he was progressing through his rotations. This final decision #4 issued December 17th 2013 dealt with the issue of remedy and provided Dr. Kelly with a substantial Christmas gift.

The Tribunal found that, over the 6 years he was out of the program, Dr. Kelly’s lost earnings were $385,000. Compare this to the lost earnings of Ms. Datt in her case against McDonald’s in 2007—her 2 years lost earnings were only $35,000 yet she received $25,000 for injury to dignity, hurt feelings and self-respect.

Dr. Kelly testified that the termination had a significant impact on him saying, among other things, that “he felt terrified, embarrassed” and in despair; he suffered “ongoing feelings of panic, depression, not sleeping, and feeling like ‘a complete failure’”; was feeling “angry, sad, dejected and completely worthless” and that he felt like the “life had been ‘sucked out’ of him..[and] felt disillusioned and like a ‘complete loser’”. He had to move back in with his parents and that had a negative impact on his relationships with his friends and family; and finally he claimed he had “symptoms of depression, including the loss of a will to live”.

The case provides a very thorough and useful analysis of when past and future wage loss will be awarded as well as contingency deductions and mitigation. But the more troubling part of the Award for employers is the precedent-setting award of $75,000 for injury to dignity, hurt feelings and self-respect.

The Tribunal noted that injury to dignity awards are “compensatory, not punitive, and the assessment of quantum is ‘highly contextual and fact-specific’”. Here the Tribunal considered the “totality of the relationship between Dr. Kelly and UBC”.

The Tribunal was of the view that the “gravity of the effects of the discrimination in this case warrants a substantial award …which is beyond the highest award that has yet been made by this Tribunal”. It took into account the subjective evidence of Dr. Kelly who, among other things, claimed he “was pursuing an almost life-long desire to become a physician and that the loss of that opportunity had a serious and detrimental impact on him, particularly within the context of his family dynamics”. The evidence of depression and lack of interest in life and other health related symptoms were also key factors. Finally the Tribunal noted Dr. Kelly was in a vulnerable position.

This decision simply does not provide a clear test for calculating these types of losses that one would expect in such a landmark decision. There is no analysis of the 3 separate factors—what differentiates injury to dignity or self-respect or hurt feelings? Are they compensated differently as section 37 contemplates? In this case Dr. Kelly asked for $75,000. What if he had asked for $200,000? Would he have received $75,000 or would it have been closer to $200,000?

Compare this case to that of Ms. Datt. Why does Dr. Kelly deserve 3 times as much money as Ms. Datt who was a loyal employee for over 20 years and planned to work another 20 years at McDonald’s until her retirement? Her evidence included:

[284] Ms. Datt testified that she loved her job at McDonald’s. Her co-workers and customers were like her family and she misses both them. She was very depressed when she lost her job. She still wakes-up thinking about her job at McDonald’s.

[285] Losing her job created a lot of stress at home, both financially and emotionally. She was denied Employment Insurance benefits and was unable to find work for almost a year following her termination. The financial stress resulting from the loss of her job created great difficulties within her marriage. Ms. Datt felt that she could not do her part within her marriage, such as taking her children out for dinner.

Ms. Datt devoted her life to McDonald’s:

[290] Ms. Datt’s career at McDonald’s was her life. She had an excellent relationship with her co-workers and the customers. She performed duties for McDonald’s for which she was not compensated or recognized. She had planned to stay at McDonald’s until she retired: it was her family. As stated in Wallace, quoted above, for most people, work is one of the “defining features of their lives”. In my view, the evidence was clear that this was the case for Ms. Datt. She was a 23-year employee, with a very good performance record, and there was no indication that she ever thought of leaving.

Ms. Datt was awarded $23,000 for the wage loss and nothing for future wage loss. Dr. Kelly was awarded approximately $400,000 in wage loss and he was fully reinstated in the UBC Program thus ensuring his career earnings would remain the same. It is not clear what the rationale is for awarding him 3 times the amount of damages for injury to dignity, hurt feelings and self-respect. It certainly cannot be inflation. One key factor was the time it took to issue a remedy decision which was then implemented by UBC (6 years). But should employers pay for a 6-year delay in the litigation process at the Tribunal?

Most employers can live with bad decisions or laws so long as there is certainty. Here the Tribunal has in my view removed this certainty. I do not believe $75,000 will remain a cap for long and expect the awards will continue to rise. A rising tide raises all boats. Since human rights violations do not require intention to find a violation of the Code these awards are very subjectively based. While UBC may be able to afford 7 years of litigation with attendant legal fees and costs together with a damage award exceeding $500,000, most small and medium-sized employers cannot. Further, these awards are likely nontaxable, thus doubling in some cases the value to the employee.

Total damage awards in human rights cases are increasing at an alarming rate. It is time for the government to take a bold step and institute a fixed cap on damages for injury to dignity, feelings and self-respect and to provide statutory guidance on how the awards should be made in any given case. In that way the awards will be predictable and that alone will assist the parties and the Tribunal in their efforts to mediate settlement of bona fide complaints.

A petition for judicial review on both the merits and quantum has been filed. However given the court’s reluctance to interfere with decisions of the Tribunal regarding quantum of damages under this heading it will be difficult in my view for UBC to reverse the Tribunal’s decision: see for example Silver Campsites Ltd v James, 2013 BCCA 292.

Kelly v UBC (No. 4), 2013 BCHRT 302

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