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B.C. Human Rights Tribunal Awards Unprecedented $75,000 for Injury to Dignity and Nearly 500k In Total Damages

In keeping with the trend of rapidly increasing damage awards for human rights violations in the employment context, in Kelly v., UBC, the B.C. Human Rights Tribunal recently awarded an Applicant close to $475,000 in damages including an unprecedented $75,000 in damages for injury to dignity, feelings and self-respect and over $385,000 in lost wages.

A medical resident at the University of British Columbia (UBC) filed a human rights Application after he believed UBC had failed to reasonably accommodate his Attention Deficit Hyperactive Disorder and non-verbal learning disability throughout his medical residency program.

The Applicant began his residency in 2005 as a paediatrics resident. Almost immediately, the Applicant struggled with the program, failing his first paediatrics rotation and underperforming in his family medicine rotation. Due to concerns over the Applicant's performance and in an attempt to accommodate the Applicant, UBC determined that he would be permitted to complete his failed paediatrics rotation, be assigned a mentor, that his family rotation would be extended and that he would follow a different, more beneficial structure in his future rotations.

When the Applicant continued to underperform, he was referred to a psychologist to explore the difficulties he was having with the program. The psychologist recommended various accommodations which she believed would assist the complainant in successfully completing his residency, including providing him with longer familiarization periods, clear written instructions, recipes or templates to follow, minimal time constraints to complete tasks, counselling, and a one-on-one preceptor for his resident rotation in family medicine.

After receiving the psychologists report, UBC implemented a number of the recommended accommodation measures, including lengthening the Applicant's eight-week rotation in family medicine to 20 weeks, reintroducing him to the program to associate him with a new peer group, and hiring a preceptor to provide intensive supervision and training. Despite these accommodations, the complainant continued to perform below expectations. At this point, UBC determined that the Applicant's "life-long deficits" made him unsuitable for the curriculum and that he should be dismissed in order to not undermine the academic and clinical goals of the residency program.

Despite the Applicant's underperformance and long-term diagnosis, the Tribunal determined that the Applicant's dismissal was discriminatory:

"UBC's reliance on the life-long nature of the complainant's disorder as a reason to conclude that he would not be successful even if the Gibbins' recommendations were implemented ... was unreasonable, particularly in light of Dr. Gibbins' evidence that he would expect the effect of the disorder to be reduced if the accommodations were implemented."

The Tribunal set out the following factors to justify its unparalleled award of $75,000 in damages for injury to the Applicant's dignity, feelings and self-respect:

  • The dismissal significantly delayed the commencement of the Applicant's medical practice;
  • The Applicant's suffering was magnified because medicine was his life-long passion;
  • The dismissal caused the Applicant to experience deep humiliation and embarrassment both socially and professionally, in addition to suffering from depression and other medical issues;
  • The Applicant experienced further embarrassment when applying for jobs and explaining why he was not pursuing his medical career;
  • The dismissal caused the Applicant to lose his source of income thereby compelling him to move back in with his parents and causing him to lose his independence; and
  • The Applicant was in a vulnerable position as a student and resident who suffered from a disability and was dependent on UBC to reasonably accommodate his disabilities.

In addition, the Tribunal awarded the Applicant $385,195 in lost wages with a tax gross-up for the five years he was out of work, almost $13,000 for the Applicant's expert reports, over $1,000 for tuition and pre-and post-judgement interest.

Note: This is a reprint of an article by Brian Silva of CCPartners.