Jan 24

Human Rights Damages for Disability Discrimination- Defining What’s Reasonable

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Human Rights Damages for Disability Discrimination- Defining What’s Reasonable

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Discrimination on the basis of disability is one of the more severe forms of discrimination, particularly in the workplace, considering that a termination can further disadvantage a disabled individual who is typically already impaired by his or her disability.

Trends in Damage Awards

The human rights tribunals of Canada, and the courts, seemed to take a rather predictable approach to damage awards for discrimination until as of late. Take the case of Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799, where $20,000.00 was awarded for disability-related discrimination, or Simpson v. JB & M Walker, 2010 HRTO 819, where $15,000.00 was awarded for disability-related discrimination.

Recent Decisions—Kelly v. University of British Columbia

The British Columbia Human Rights Tribunal has recently increased the range of damage awards. In Kelly v. University of British Columbia 2013 BCHRT 302(CanLII) (and 2015 BCSC 1731- Application for judicial review), the Applicant, a doctor in a residency program, suffered from Attention Deficit Hyperactivity Disorder and a non-verbal learning disorder prior to entering the program and continued to suffer throughout his residency, which resulted in performance issues. Dr. Gibbins, whom the University appointed to assess Dr. Kelly and provide suggestions as to how he could be accommodated, suggested a number of changes that would allow Dr. Kelly to continue in his role However, the accommodations did not prove successful and Dr. Kelly was terminated. He subsequently laid a complaint for human rights violations on the basis of disability.

When the matter proceeded before the British Columbia Human Rights Tribunal, Dr. Kelly was successful in obtaining a general damages award of $75,000.00 for injury to dignity, feelings and self-respect. The University applied for judicial review of this award. The British Columbia Supreme Court agreed that the award was patently unreasonable, referring the decision back to the Tribunal, but upheld the $385,194.70 damages award for loss of wages. The Court did not, however, imply that the reasonable award would be less than $35,000.00. In fact, the learned Justice Silverman explicitly indicated that he “refrain[ed] from suggesting that Dr. Kelly’s award should not be more than $35,000.”

While we are currently awaiting the Tribunal’s decision upon revisiting this case, the initial award and the remarks of Justice Silverman make it clear that damage awards for disability-based discrimination are increasing as case law continues to evolve.

Principles

The difference in Kelly when compared to cases such as Simpson and Wilson, notwithstanding the severity of the discrimination in each of the respective cases, is the effects that Dr. Kelly’s termination had on his career. At the time of his termination, Dr. Kelly was still in the University’s residency program and was on track to complete the program and begin practicing family medicine as early as 2010. Because of the termination, Dr. Kelly had to secure a new residency placement with a different hospital, which could delay his entry into practice by up to six (6) years. The Plaintiffs in Simpson and Wilson also had disabilities which affected their ability to find new work (In Simpson the Applicant suffered from a back injury and subsequently began suffering from generalized anxiety disorder as a result of her treatment at work; in Wilson the Plaintiff suffered a back injury as well), their ability to find work was not impaired to the level it was in Kelly given the professional requirements placed upon Dr. Kelly in order for him to begin practicing and earning the money a full-fledged doctor would. On this basis, it is likely that the award will remain above $35,000.00.

Nevertheless, the case is instructive in that it demonstrates that not all awards for violations of the Ontario Human Rights Code, R.S.O. 1990, c.19 are predictable based on the prohibited ground involved. If you have questions regarding your employment or are concerned that your employer may be in violation of human rights legislation, or employment standards legislation, contact Monkhouse Law for a free consultation today.