In University of British Columbia v. Kelly, 2016 BCCA 271 (CanLII), the Court of Appeal confirmed the decision of the BC Human Rights Tribunal.
UBC dismissed Kelly from his residency in family medicine. He successfully filed a human rights complaint, claiming discrimination based on learning disability. UBC sought judicial review. The Tribunal’s decision was upheld except with respect to the $75,000 award for injury to dignity, the highest award to date. UBC appealed, including the award for future wage loss. Kelly cross-appealed with respect to the reduction of the injury to dignity award.
The Court set out the Tribunal’s findings with respect to future wage loss:
“[49] The appellant terminated the respondent on 23 August 2007 and reinstated him on 1 February 2013, almost six years later. The Tribunal compensated the respondent for a six-year delayed entry into medical practice under the rubric of future wage loss. At the time of the remedy decision, issued 17 December 2013, the respondent was proceeding successfully through his training rotations. The Tribunal accepted the calculation of an expert on the loss associated with the delayed entry, made on the assumption the respondent would pass the program, and then the Tribunal discounted the amount by 30% to account for contingencies: 10% against the possibility he would fail; and 20% on the chance he might have to practise at a reduced level. No issue was taken with the size of the contingencies deduction.”
The Court referred to the reasoning in Gichuru v. Law Society of British Columbia, 2013 BCSC 1325 (CanLII), appeal dismissed 2014 BCCA 396 (CanLII): While s. 37 of the Code allows the Tribunal to consider common law principles with respect to damages, but the amount of the compensation was a matter of discretion. The Tribunal could consider future wage loss. In Kelly, the Court of Appeal noted that the “Tribunal found that the respondent suffered a loss because of the delayed entry, and that it was caused by the appellant’s discrimination. It held that in order to provide a make-whole remedy, the respondent should be compensated for this loss.” There was a clear causal link. The decision was not patently unreasonable (see Para. 55 and 57).
With respect to injury to dignity, the judicial review judge found that the $75,000 award was more than double of what had been awarded in previous cases. The Court of Appeal found his reasoning wanting, referring to Gichuru. The Court noted that there is no cap on injury to dignity awards and that such awards had been steadily increasing. “Judicial review is not to be treated as though it were a quantum appeal in a personal injury case. In a quantum appeal, the question is whether the award was a wholly erroneous estimate of the loss by comparison to the range established by the cases. Ranges established by previous cases play a more diminished role in the Tribunal’s determination of an award for injury to dignity.” Thus while previous awards are of some value, they are not determinative and must be decided on the particular facts of each case. The Tribunal’s $75,000 award was not patently unreasonable.