Human Rights Awards: Update on the Ceiling

We reported previously on the decision of the British Columbia Human Rights Tribunal in Kelly v. University of British Columbia.

Dr. Kelly had been diagnosed with ADHD. As a result of discrimination by the University of British Columbia, he lost the opportunity to complete his medical residency program, and to become licensed and practice medicine. He suffered humiliation and embarrassment as a result of the discrimination he faced. The Tribunal awarded him $75,000 as general damages for injury to for injury to dignity, feelings and self-respect and $385,194.70 as damages for lost wages.

The BC Supreme Court recently concluded that the award of $75,000 for general damages was patently unreasonable and it was set aside. The court remitted the case to the BC Human Rights Tribunal to re-determine the award.  The Court held that “the decision must still be based on evidence and reason and in my view that has not occurred in this case.”

While this reduced the high-water mark for human rights damages in BC, in Ontario, there has not been a similar judicial review of the decision of the Human Rights Tribunal of Ontario (HRTO) in O.P.T. v. Presteve Foods Ltd.  In that case, adjudicator Mark Hart ordered a corporation and its owner to pay a vulnerable temporary foreign worker $150,000 in general damages because the owner sexually harassed and sexually assaulted the worker.

This decision raised the highest general damages award in Ontario significantly.  It also signaled that employers who dramatically violate human rights legislation will suffer serious consequences.  We remain interested to see whether the HRTO continues to order significant damage awards for severe human rights violations.

If you have questions about human rights, please contact us at [email protected] or 647-204-8107.