University of British Columbia v. Kelly, 2016 BCCA 271 (CanLII)
British Columbia Court of Appeal
CHRR Doc. 16-3073 |
University of British Columbia
Appellant
(Respondent on Cross Appeal)
v.
Carl Kelly
Respondent
(Appellant on Cross Appeal)
and
British Columbia Human Rights Tribunal
Respondent
Date of Decision:
June 24, 2016
Before:
British Columbia Court of Appeal, Donald, Frankel and Fenlon JJ.A.
Reasons for Decision by:
Donald J.A.
File No.:
CA43198
Appeal from:
2015 BCSC 1731,
Appearances by:
D.J. Jordan, Counsel for the Appellant
C.D. Bavis and A. Tremblay, Counsel for the Respondent Carl Kelly
K.A. Hardie, Counsel for the Respondent Tribunal
APPEALS AND JUDICIAL REVIEW — appeal or review of damage award — error of law in determining damages, whether there was a prima facie case and findings on the evidence — reasons for decision are unreasonable or patently unreasonable — REASONABLE ACCOMMODATION — duty to accommodate short of undue hardship — procedural/substantive component of undue hardship — Meiorin/Grismer test for reasonable accommodation
ADMINISTRATIVE TRIBUNALS — COURTS — judicial review powers of court over administrative tribunals — DISCRIMINATION — definition of discrimination
Summary: The B.C. Court of Appeal upheld the decision of the British Columbia Supreme Court, which found that the B.C. Human Rights Tribunal did not err when it ruled that the University of British Columbia ("UBC") and Providence Health Care Society ("Providence"), which operates St. Paul’s Hospital, discriminated against Dr. Carl Kelly because he has Attention Deficit Hyperactivity Disorder ("ADHD") and a Non-Verbal Learning Disability.
However, the B.C. Court of Appeal found that the B.C. Supreme Court erred when it found that the Tribunal’s $75,000 award for injury to dignity was not reasonable, and referred this element of the remedy award back to the Tribunal for reconsideration.
UBC sought judicial review of both the decision on the merits and the decision on remedy. Dr. Kelly cross-appealed the B.C. Supreme Court’s ruling that the Tribunal award for injury to dignity was not reasonable.
From 2005 to 2007, Dr. Kelly was enrolled in the residency program administered by the Faculty of Medicine at the University of British Columbia. He spent part of his residency at St. Paul's Hospital, which is operated by the Providence. While he was a resident at St. Paul's Hospital, Providence was his employer.
On August 29, 2007, the University terminated Dr. Kelly's enrolment in the program for unsuitability. Providence then terminated his employment.
Residents in the program are assigned to specific rotations within various teaching hospitals and community practices. Dr. Kelly failed his first rotation in paediatrics in Kelowna, and was transferred to St. Paul's Hospital for a remedial rotation. He passed emergency outpatient and neonatal surgery blocks of the paediatrics remediation rotation, but failed his family practice ward rotation. In August 2006, he passed his internal medicine rotation and in September 2006, he passed his emergency rotation. Nonetheless, in September 2006, Dr. Kelly commenced an educational leave, and was not scheduled for any further work or rotations. During his time in the program, his supervisors noted that he had some difficulty with auditory processing and needed more time to review information and procedures.
UBC made several accommodations for Dr. Kelly, including moving him from Kelowna to Vancouver, lengthening an eight-week rotation in family medicine at the UBC Clinic to 20 weeks, and hiring a preceptor (at a cost of $1,000) to provide intensive supervision on the family practice ward at St. Paul's. Dr. Kelly had disabilities and UBC was aware of these disabilities from at least December 2005 until his termination.
The Tribunal found that Dr. Kelly was treated adversely when he was not provided with the opportunity to undertake a remedial rotation, or to go on probation – opportunities which are commonly available to residents. Further, his dismissal from the program was adverse treatment.
The Tribunal found that there was a connection between Dr. Kelly's disabilities and his performance in the program. His performance was affected by his difficulties with attention and working memory. Dr. Kelly was receiving treatment throughout the period of his residency and his doctors recommended accommodations to deal with his particular disabilities. His performance was improving at the time he was dismissed from the program. He successfully completed his August and September 2006 rotations. If his performance was optimized, it was at a level of success, not failure.
Considering whether UBC accommodated Dr. Kelly to the point of undue hardship, the Tribunal found UBC could have accommodated Dr. Kelly further by providing remedial rotations and probationary periods, one-on-one preceptors, extended rotations or other accommodations that were similar to those recommended by one of Dr. Kelly's doctors. These were all contemplated by the policy of the program and would not have required any fundamental change. Two specialists in the area of ADHD suggested that, with appropriate accommodation, Dr. Kelly would be successful in the program. The Tribunal ruled that Dr. Kelly's complaint under both s. 8 and s. 13 of the Human Rights Code was justified.
In a separate decision, the B.C. Human Rights Tribunal ordered damages for wage loss and injury to dignity to Dr. Kelly.
At the Court of Appeal, the issues on the merits were: did the B.C. Supreme Court err in concluding that the Tribunal: (1) correctly declined to consider evidence of modifications to Dr. Kelly’s program as part of the prima facie discrimination analysis, (2) reasonably found a nexus between Dr. Kelly’s adverse treatment and his disabilities, (3) correctly considered both procedural and substantive elements in assessing whether UBC met its duty to accommodate and (4) found that UBC had not met its duty to accommodate.
With respect to the remedies decision, the issues were: did the B.C. Supreme Court err in concluding that (a) the Tribunal’s award of damages for lost earnings was not patently unreasonable and (b) the award of damages for loss of dignity was arbitrary and therefore patently unreasonable.
On the issues on the merits, the Court of Appeal found that the B.C. Supreme Court did not err. It upheld the rulings of the lower court and the Tribunal.
The Court of Appeal also found that the B.C. Supreme Court did not err in upholding the wage loss remedy. However, it found that the B.C. Supreme Court did err when it found that the award of $75,000 for injury to dignity was arbitrary and therefore unreasonable. The B.C. Court of Appeal stated that judicial review of a Tribunal remedy is not to be treated as though it were a quantum appeal in a personal injury case. In a quantum appeal, comparison is made to the range established in previous cases. But in a human rights case, it is not patently unreasonable to exceed the "range" and the B.C. Supreme Court erred in finding that it was. The Tribunal was aware of awards in other cases and decided that this case was different. It relied on evidence of Dr. Kelly’s acute suffering and despair.
The B.C. Court of Appeal restored the Tribunal’s award for loss of dignity.
CASES CITED
Armstrong v. British Columbia (Ministry of Health), 2010 BCCA 56,
Boehringer Ingelheim (Canada) Ltd. v. Kerr, 2011 BCCA 266,
British Columbia (Public Service Employee Relations Comm.) v. B.C.G.S.E.U., 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3,
British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868,
Canada (Attorney General) v. Cruden, 2013 FC 520,
Canada (Attorney General) v. Cruden, 2014 FCA 131,
Canada (Attorney General) v. Tahmourpour (No. 1), 2010 FCA 192,
Canada (Attorney General) v. Tahmourpour (No. 2), 2010 CHRT 34,
Coast Mountain Bus Co.. v. C.A.W., Local 111, 2010 BCCA 447,
Emergency and Health Services Comm. v. Cassidy (No.1), 2011 BCSC 1003,
Gichuru v. Law Society of British Columbia (No. 11), 2011 BCHRT 185,
Gichuru v. Law Society of British Columbia (No. 3), 2013 BCSC 1325,
Gichuru v. Law Society of British Columbia (No. 2), 2014 BCCA 396,
McGill University Health Centre v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4, [2007] 1 S.C.R. 161,
Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360,
Québec (Comm. des droits de la personne et des droits de la jeunesse) v. Bombardier Inc., 2015 SCC 39, [2015] 2 S.C.R. 789,
University of British Columbia v. Kelly (No. 3), 2012 BCHRT 32,
University of British Columbia v. Kelly (No. 4), 2013 BCHRT 302,
University of British Columbia v. Kelly, 2015 BCSC 1731,
LEGISLATION CITED
British Columbia
Administrative Tribunals Act, S.B.C. 2004, c. 45
s. 59(1): 55
s. 59(3): 55
s. 59(4): 55
Human Rights Code, R.S.B.C. 1996, c. 210
s. 8: 1, 10, 18
s. 13: 1, 10, 18
s. 37: 52
I. INTRODUCTION
[1] The appellant, University of British Columbia ("UBC"), dismissed Dr. Carl Kelly, the respondent, as a resident in its post-graduate training program in family medicine. The respondent has an attention deficit hyperactivity disorder ("ADHD") and a non-verbal learning disorder ("NVLD"). The respondent filed a complaint under the Human Rights Code, R.S.B.C. 1996, c. 210, alleging discrimination. The Human Rights Tribunal found that the respondent’s disabilities were a factor in his adverse treatment and that he had established prima facie discrimination under s. 8 (a service) and s. 13 (employment). The Tribunal held that although it had made some modifications to the program for the respondent, the appellant had not provided reasonable accommodation to the point of undue hardship.
[2] The Tribunal assessed damages after a separate hearing and awarded the respondent lost earnings as a resident and future earnings as a family doctor on account of the approximate six years’ delay of his entry into the profession, discounted for contingencies. He was awarded additional damages under the head of injury to dignity, feelings and self-respect.
[3] The appellant alleges errors of law in the Tribunal’s findings of prima facie discrimination and that the appellant failed to establish either a bona fide reasonable justification ("BFRJ"), s. 8, or a bona fide occupational requirement ("BFOR"), s. 13.
[4] The first error of law is said to be the Tribunal’s refusal to consider the evidence of the modifications to the program as relevant to the factual determination whether the disability was a factor in the adverse treatment at step three of the analysis for prima facie discrimination. The second error of law is alleged to be in the Tribunal’s consideration of the appellant’s process in arriving at the decision to terminate the respondent, when only the substantive reasons for decision are relevant to the duty to accommodate. Such a "holistic" approach is said to be against the authorities.
[5] The appellant also alleges the following unreasonable findings of fact on the consideration of all the evidence: (a) that the respondent’s disability was a factor in the adverse treatment or that there was a nexus between the adverse treatment and the respondent’s disability; and (b) that the appellant failed to accommodate the respondent to the point of undue hardship.
[6] The point taken against the future loss of earnings award is that it is for a notional loss, based on an unprovable assumption that the respondent would pass the program, and is therefore patently unreasonable. According to the appellant, the appropriate remedy in such cases is to provide the opportunity to enroll in the training program and to award compensation for the period of the program.
[7] On judicial review, the chambers judge dismissed the appellant’s petition, upholding the Tribunal’s reasoning on the same points of law as advanced on this appeal, and refusing to interfere with the Tribunal’s findings of fact. He set aside the dignity award on the basis that it was arbitrary and therefore patently unreasonable, leaving it to the Tribunal to reconsider the decision. The respondent cross appeals the interference in the dignity award on the ground that the judge failed to defer to the Tribunal’s decision which was based on principle and supported by the evidence.
[8] For the reasons that follow, I would dismiss the appeal and allow the cross appeal by restoring the full amount for loss of dignity.
II. BACKGROUND
[9] After graduating from the Undergraduate Medical Program at the University of Alberta, the respondent became a resident in the Family Medicine Residency Program at the University of British Columbia. During the program, residents are employed by health authorities that operate the hospitals affiliated with the appellant. It was determined at an early stage that the respondent had difficulty with some aspects of the program which was the result, at least in part, of his ADHD and NVLD. The appellant attempted to provide the respondent with accommodations to resolve his difficulties.
[10] The Program Director had a meeting with members of the resident performance subcommittee to discuss the respondent’s suitability for continued training in family medicine. As a result of this meeting, the Director wrote a letter to the Postgraduate Deans, dated 23 August 2007, expressing the view that the respondent lacked necessary basic skills and was not able to meet the standards of the program even when provided with accommodations. The Director recommended the respondent’s termination from the program. The respondent was then dismissed from the program on the basis of unsuitability pursuant to the Faculty of Medicine’s Resident Evaluation and Appeals Policy. Loss of his status as a student necessarily resulted in the loss of his employment with Providence Health Care. The respondent appealed the program’s decision to the Resident Staff Appeals Committee under the Policy. That appeal was denied. On 19 February 2008, the respondent filed a complaint with the Tribunal, alleging that the appellant discriminated against him contrary to ss. 8 and 13 of the Human Rights Code.
[11] On 23 February 2012, the Tribunal found that the respondent suffered from disabilities and that the program was aware of his disabilities from at least December 2005: Kelly v. University of British Columbia (No. 3), 2012 BCHRT 32 [
[12] The appellant applied for judicial review of the Tribunal’s merits and remedy decisions and asked for an order that both decisions be quashed. Reasons on the judicial review are indexed at University of British Columbia v. Kelly, 2015 BCSC 1731 [
[13] In review of the remedy decision, the judge discussed whether both the awards for compensation for wage loss and for injury to dignity, feelings and self-respect, were patently unreasonable. The judge held that the Tribunal’s decisions with respect to wage loss were not patently unreasonable. The judge found, however, that the Tribunal’s decision to award $75,000 for injury to dignity, feelings and self-respect was patently unreasonable and set it aside. This award was more than double the previous high of $35,000 for similar discrimination. The judge explained that the Tribunal’s decision was not based on principle and could not be supported by the evidence.
III. ISSUES
[14] With respect to the merits decision, I would frame the issues on appeal as follows. Did the judge err in concluding that the Tribunal:
(a) correctly declined to consider evidence of modifications to the appellant’s program as part of the prima facie discrimination analysis?
(b) reasonably found a nexus between the respondent’s adverse treatment and his disabilities?
(c) correctly considered both procedural and substantive elements in assessing whether the appellant met its duty to accommodate?
(d) reasonably found that the appellant had not met the duty to accommodate?
[15] With respect to the remedy decision, I would frame the issues on appeal and cross appeal respectively as follows. Did the judge err in concluding that:
(e) the Tribunal’s award of damages for lost earnings was not patently unreasonable?
(f) the Tribunal’s award of damages for loss of dignity was arbitrary and therefore patently unreasonable?
IV. DISCUSSION
[16] I will discuss the issues in the order that they are listed above.
A. Is evidence of modifications relevant to prima facie discrimination?
[17] It is agreed that this is a question of law reviewed on the standard of correctness.
[18] It is also common ground that the test for prima facie discrimination under ss. 8 and 13 of the Code involves a three-part analysis. The onus is on the complainant to establish that:
(1) he or she had (or was perceived to have) a disability;
(2) he or she received adverse treatment; and
(3) his or her disability was a factor in the adverse treatment.
(Armstrong v. British Columbia (Ministry of Health), 2010 BCCA 56 [
[19] If the complainant establishes prima facie discrimination, the onus shifts and the enquiry turns to the question whether the respondent can show that the adverse treatment was as a result of a BFOR or BFRJ.
[20] The appellant argues that it should have been allowed to prove that it did not discriminate against the respondent on any group characteristic or stereotypical thinking, and instead based its decision to terminate the respondent on his individual abilities. Had the appellant been given the opportunity, it could have demonstrated that its modifications of the program "levelled the playing field", thereby alleviating the effects of his disability, with the result that the evaluation of his capacity to perform in the program was made free from any considerations of his disability. In this way, the appellant could have answered the accusations of discrimination and adverse treatment, both pejorative, at the first of the two stages of the analysis.
[21] In support of this argument, the appellant cites authority for the proposition that the discrimination at which human rights legislation is aimed involves the attribution of stereotypical or arbitrary characteristics. In McGill University Health Centre v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4 [
48 At the heart of these definitions is the understanding that a workplace practice, standard, or requirement cannot disadvantage an individual by attributing stereotypical or arbitrary characteristics. The goal of preventing discriminatory barriers is inclusion. It is achieved by preventing the exclusion of individuals from opportunities and amenities that are based not on their actual abilities, but on attributed ones. The essence of discrimination is in the arbitrariness of its negative impact, that is, the arbitrariness of the barriers imposed, whether intentionally or unwittingly.
49 What flows from this is that there is a difference between discrimination and a distinction. Not every distinction is discriminatory. It is not enough to impugn an employer’s conduct on the basis that what was done had a negative impact on an individual in a protected group. Such membership alone does not, without more, guarantee access to a human rights remedy. It is the link between that group membership and the arbitrariness of the disadvantaging criterion or conduct, either on its face or in its impact, that triggers the possibility of a remedy. And it is the claimant who bears this threshold burden.
[22] If the appellant could show that the modifications eliminated the disability as a factor in the respondent’s difficulty with the program, it is argued that it could defeat the claim as not being associated with any stereotypical or arbitrary characteristics.
[23] The Tribunal dealt with this argument in its reasons, which the judge endorsed:
[481] UBC argues that Dr. Kelly was not treated adversely. It says that Dr. Kelly was dealt with on his individual merits, and in accordance with his personal abilities. In this part of its argument, it reviewed in some detail the modifications that it says it made to Dr. Kelly’s Program as a result of the medical information it received about him, and stated:
Treating Dr. Kelly in this manner is consonant with a duty not to discriminate and does not constitute "discrimination". Given that modifications were made in Dr. Kelly’s training to provide him with assistance to meet the standards against which he would be assessed, it is clear he was treated as an individual.
[482] It says that had it ignored the information that it had about Dr. Kelly and required him to meet the same standard as everyone else, then he would have been treated adversely. Instead, it says that it built modifications into its standards and then assessed Dr. Kelly on his individual merits. Consequently, it says there was no adverse treatment.
[483] I am unable to accept this argument. In my view, the use of the term "modifications" does not change the true character of the steps that UBC took in regard to Dr. Kelly's Program. The steps are properly characterized as accommodations and are relied on as such in UBC’s argument concerning the duty to accommodate.
[484] In my view, the reasonableness of the full scope of modifications relied on by UBC are properly considered under the BFOR/BFRJ analysis. As noted by the B.C. Court of Appeal in Coast Mountain Bus Company Ltd. v. CAW-Canada, Local 111, 2010 BCCA 447 [
… in my view, a failure to accommodate is not a matter that demonstrates prima facie discrimination. Rather, once prima facie discrimination has been demonstrated, issues of accommodation are considered in determining whether discrimination is justified on the basis of a bona fide occupational requirement. It may be that accommodation will ameliorate the effects of adverse treatment, but a lack of accommodation does not, without more, support a finding of adverse treatment. (para. 66)
[485] Similarly, while positive accommodations may serve as a defence to a finding of prima facie discrimination, it is improper to collapse the analysis and assess the reasonableness of UBC’s accommodations within the prima facie analysis.
[486] The very reason that UBC was implementing modifications was because of Dr. Kelly’s disabilities. If I were to consider the reasonableness of the full scope of those modifications in this part of the analysis, and concluded Dr. Kelly had proven a prima facie case of discrimination, such a conclusion would inevitably result in a finding that UBC could not establish a BFRJ/BFOR.
[487] In this regard, it is also important to recognize that it is not in dispute that UBC accommodated Dr. Kelly to some extent. The focus of the issue is whether it fully discharged its duty in all the circumstances.
[24] I would add to these reasons the following observations. Discrimination is not contrary to the Code unless a distinction that has been found prima facie discriminatory is not justified. There is no requirement to establish a mental element, a guilty mind, or an intention to discriminate at the third step of the prima facie discrimination test. I quote again from Armstrong at para. 27:
[27] The parties made extensive submissions to us with respect to the issue of whether, on the basis of McGill University Health Centre and Gooding [British Columbia (Public Service Agency) v. British Columbia Government and Service Employees’ Union, 2008 BCCA 357, 298 D.L.R. (4th) 624,
See also Québec (Comm. des droits de la personne et des droits de la jeunesse) v. Bombardier Inc., 2015 SCC 39, [2015] 2 S.C.R. 789 [
[25] The Tribunal’s refusal to collapse the BFOR/BFRJ analysis into step three is supported by a consideration of the scheme of the Code. The assignment of the onus is an important aspect of the procedure. The complainant discharges its onus when it proves the three steps, the third of which is simply to establish a connection between the disability and the decision, without regard for any consideration of the position of the decision-maker, such as hardship, or the motive or state of mind of the decision-maker. Such particulars are best known to the decision-maker, and largely irrelevant except for considerations of bona fides. If the appellant’s position is correct, the complainant has to disprove a defence while carrying a threshold burden. Moreover, the Tribunal would have to decide accommodation twice, giving the respondent to a complaint two opportunities to make out its defence. In answer to this concern, the appellant’s counsel said that accommodation might be considered twice, but on different tests. We were not told in what way the tests would differ.
[26] In summary, the proposition that the appellant should have been allowed to argue its accommodation at the prima facie stage works an unfairness on complainants, duplicates the adjudication of an issue, and introduces an extraneous element—intention—into an objective analysis. That is not to say a respondent cannot offer evidence to demonstrate that its adverse treatment was unrelated to a disability, but where that evidence is the respondent’s efforts at accommodation, the nexus at step three is immediately manifest and the matter must move to justification.
[27] Finally, the proposition is contrary to authority. As the Tribunal noted, in Coast Mountain Bus Co.. v. C.A.W., Local 111, 2010 BCCA 447 [
[66] The second and fourth areas dealt with failings in accommodation efforts of the Employer. In my view, a failure to accommodate is not a matter that demonstrates prima facie discrimination. Rather, once prima facie discrimination has been demonstrated, issues of accommodation are considered in determining whether the discrimination is justified on the basis of a bona fide occupational requirement. It may be that accommodation will ameliorate the effects of adverse treatment, but a lack of accommodation does not, without more, support a finding of adverse treatment. [Emphasis added.]
[28] I would not accede to this ground of appeal.
B. Was the finding of a nexus between the respondent’s disability and his adverse treatment unreasonable?
[29] The appellant asserts that its decision to dismiss the respondent was based on his inability to meet the requisite standards, notwithstanding significant modifications made to his program. While acknowledging that the respondent’s disabilities may have been a factor in his inability to meet those standards, the appellant says that there is no evidence that his assessment was based on stereotypical assumptions, presumed characteristics, or any other attributes protected under the Code.
[30] The judge held that the Tribunal made a reasonable inference from the evidence, which it accepted, that the termination was connected to the respondent’s disability.
[31] Before reviewing that evidence, I will deal with an argument that the Tribunal’s determination conflicts with the leading case of British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868 [
[32] As I apprehend it, the submission is that a respondent may set a reasonable standard and base its decision whether to grant or withhold a service or benefit on a claimant’s ability to meet the standard without violating human rights. In this case, that means that the evidence of nexus should have been considered through the lens of the appellant’s standard in the program. Looking at the evidence that way, it is argued that the Tribunal would have seen that the respondent was terminated not because he was disabled, but because he could not measure up to the standard. This passage from Grismer is cited in support:
19 Meiorin [British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3,
[33] While the foregoing passage could be read in support of the appellant’s position, it must be considered alongside the paragraph that follows:
20 Once the plaintiff establishes that the standard is prima facie discriminatory, the onus shifts to the defendant to prove on a balance of probabilities that the discriminatory standard is a BFOR or has a bona fide and reasonable justification. In order to establish this justification, the defendant must prove that:
(1) it adopted the standard for a purpose or goal that is rationally connected to the function being performed;
(2) it adopted the standard in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal; and
(3) the standard is reasonably necessary to accomplish its purpose or goal, in the sense that the defendant cannot accommodate persons with the characteristics of the claimant without incurring undue hardship.
[34] I do not read Grismer to stand for the proposition advanced. Where, as here, the program could be and was modified to accommodate a disability, the enquiry moves on to the justification stage to see whether the accommodation reached the point of undue hardship.
[35] The appellant argues that Grismer holds that a respondent does not have to lower a standard in order to fulfill the duty to accommodate. That is true in the sense that an applicant for a driver’s licence must be able to drive safely according to a reasonable standard, or a medical trainee must be able to treat patients competently before qualifying. Grismer was not about passing a driving test; it concerned giving a man with partial blindness a fair opportunity to be tested according to the standard of road safety. Likewise, the issue in the present case is the degree to which the program should be adapted to allow the respondent to acquire the skill and knowledge to practise family medicine given his disability, if he can. If he cannot meet the standard of a qualified practitioner, then he is not entitled to pass.
[36] I return to the challenge of reasonableness of the finding of nexus. There was ample evidence in the record that the respondent’s disability was a factor in the decision to terminate him. This was the judge’s opinion, and I agree with it. Four illustrations from the Tribunal’s merits decision, drawn from the respondent’s factum, are demonstrative:
1. The question posed to the resident performance subcommittee was whether the respondent should be dismissed because of his disabilities. The Tribunal noted:
[379] The question posed to the Subcommittee was:
Should we as a program move to recommend to the Postgraduate Deans that this resident be dismissed for unsuitability for training? Reason being that this resident has a learning disability and that further accommodation cannot be made to allow him to meet the learning objectives of the Program? If accommodations are made, it is just a different route for the resident to finish as a proficient family practitioner as others do? The resident has had difficulty through most rotations.
2. The Program Director believed the respondent’s deficits were lifelong. The Tribunal excerpted a passage from Dr. Kernahan, the Program Director, to the Postgraduate Deans ("PG Deans"). Dr. Gibbins was the respondent’s psychologist, who made a series of recommendations to overcome the respondent’s difficulties:
[392] Dr. Kernahan concluded her letter by stating:
Even if it were possible for the Program to provide the level of accommodation requested by Dr. Gibbons [sic] we do not believe that Dr. Kelly would be able to successfully complete the family medicine training program, or be successful in future practice. As Dr. Gibbons’ report states, Carl’s deficits are lifelong …
3. Had the respondent not been disabled, he would have had further opportunity to demonstrate his abilities. The Tribunal wrote:
[438] The Appeals Committee dismissed Dr. Kelly’s appeal. I will review certain parts of the Committee’s Analysis and Rationale. In particular, the Appeals Committee stated:
Dr. Kelly’s difficulties with professional behaviour and clinical performance were significant and had these existed in isolation, i.e., not associated with a diagnosis of ADHD, either could have been grounds for dismissal. Were the case for dismissal in the absence of ADHD based on clinical performance, however, expectations would have been for documented remediation in Family Practice followed by formal probation. This did not occur. Viewed through a lens without the diagnosis of ADHD the process leading to dismissal for weakness in clinical performance would have been considered abbreviated to a degree that would not have been acceptable.
[439] In other words, the Committee concluded that, if Dr. Kelly had not suffered from a disability (ADHD), the process leading to his dismissal from the Program would have been too short and unacceptable.
4. The Program Director and others "perceived Dr. Kelly’s disabilities to negatively impact his ability to successfully learn and practice as a family medicine physician":
[504] Third, even if the evidence could have been more substantive on this point (though I do not consider this to be the case), as noted earlier, I find that Dr. Kernahan, the Resident SubCommittee, the PG Deans and the Appeals Committee all perceived Dr. Kelly’s disabilities to negatively impact his ability to successfully learn and practice as a family medicine physician. This is sufficient to establish the necessary connection between his disabilities and the adverse treatment: Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Québec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27 [
[37] I respectfully agree with the judge’s decision not to interfere with the finding of nexus.
C. Were procedural and substantive elements correctly considered in assessing the duty to accommodate?
[38] The Tribunal described its approach to the duty to accommodate as "holistic" in nature:
[527] In my view, it is relevant to consider both the accommodation process and the reasons for Dr. Kelly’s dismissal in assessing, in a holistic manner, whether UBC has satisfied its duty to accommodate. My analysis will include a consideration of these relevant factors.
[39] In its reasons, the Tribunal adverted to the appellant’s failure to include the respondent in a discussion about his situation in the program and to fully implement recommendations offered by the respondent’s psychologist.
[40] The appellant alleges that it was an error to consider a procedural component in assessing the duty to accommodate, and that only the substantive reasons for adverse treatment are relevant. The appellant submits that it should be judged on what it did, not what it did not do. The appellant relies on Emergency and Health Services Comm. v. Cassidy (No.1), 2011 BCSC 1003 [
[41] This ground was reviewed by the judge as a question of law on the correctness standard. He adopted the Tribunal’s reasons and conclusions as correct in law. The parties agree on this review standard.
[42] The settled law is that while there is no free-standing procedural duty, both procedural and substantive aspects of the impugned decision may be examined. See Moore v. British Columbia (Education), 2012 SCC 61 (CanLII), [2012] 3 S.C.R. 360 [
66 Notwithstanding the overlap between the two inquiries, it may often be useful as a practical matter to consider separately, first, the procedure, if any, which was adopted to assess the issue of accommodation and, second, the substantive content of either a more accommodating standard which was offered or alternatively the employer’s reasons for not offering any such standard: see generally Lepofsky, [M. David Lepofsky, "The Duty to Accommodate: A Purposive Approach" (1993), 1 Can. Lab. L.J. 1.]
[43] I respectfully agree with the judge that the Tribunal did not err in taking a holistic approach in examining the question of accommodation, both as to procedural and substantive components.
D. Did the appellant meet the duty to accommodate?
[44] The appellant argues that the Tribunal’s finding that it had not met its duty to accommodate to the point of undue hardship is unreasonable, and unsupported by and contrary to the evidence. This is an invitation for this Court to reweigh the evidence and conclude that the appellant did as much as it could reasonably be expected to do to modify the program for the respondent. I would decline this invitation to engage in such a de novo review.
[45] The appellant contrasts the expertise of the program physicians, who were intimately familiar with the program, to that of Dr. Gibbins, who had no such familiarity. It contends that it was unreasonable for the Tribunal to have preferred the evidence of Dr. Gibbins over that of the program physicians on the issue of accommodation. As the respondent argued, this is fact finding, to which significant deference is owed. In my view, the Tribunal looked at all the circumstances and applied its judgment to the evidence:
[551] I am not persuaded that the anecdotal observations, unquantified financial costs, organizational inconveniences, or overly broad interpretations of Dr. Gibbins’ recommendations demonstrate that UBC has discharged its duty to accommodate Dr. Kelly. I note that UBC commented early in its argument that "there is no indication in any of the evidence that any person from, or on behalf of, the Program took the position that persons with ADHD/NVLD can never be family physicians". However, it concluded its argument by stating that family medicine training and practice is not an "ADHD friendly area". In my view, this was reflective of a negative perception of Dr. Kelly, due to his disability, that ran throughout the evidence.
[46] The appellant submits that the adverse finding on accommodation was premised on the mere possibility that further accommodation may successfully see the respondent through the program. I agree with the respondent that the goal of accommodation in a training program is not guaranteed success, but only the opportunity to try. It was not necessary for the respondent to demonstrate his ability to succeed despite his disabilities: see Boehringer Ingelheim (Canada) Ltd. v. Kerr, 2011 BCCA 266 [
[47] Moreover, the Tribunal’s decision found facts which support the inference that with further accommodation there was a realistic chance of success:
[564] Dr. Kelly was not provided the opportunity to demonstrate his abilities, and be assessed against the Program’s professional and patient care standards, with the benefit of reasonable accommodation. I have found that Dr. Kernahan, the PG Deans and the Appeals Committee unreasonably rejected Dr. Gibbins’ recommendations for accommodation. As well, UBC’s reliance on the life-long nature of Dr. Kelly’s disorder as a reason to conclude that he would not be successful even if the Gibbins’ recommendations were implemented (e.g., see the last page of Dr. Kernahan’s August 23, 2007 letter) 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.
[48] I would not give effect to this ground of appeal.
E. Was the award of damages for lost earnings patently unreasonable?
[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 percent to account for contingencies: 10 percent against the possibility he would fail; and 20 percent on the chance he might have to practise at a reduced level. No issue was taken with the size of the contingencies deduction.
[50] The principal point of the appeal is that the Tribunal ought not to have awarded compensation beyond the training period, and ventured into a speculative loss of opportunity of future employment for which the appellant has no responsibility or control. It submits that the Federal Court of Appeal has, in Tahmourpour v. Canada (Royal Canadian Mounted Police), 2010 FCA 192 [sub nom. Canada (Attorney General) v. Tahmourpour (No. 1),
[51] The Tribunal ruled as follows in its remedy decision (2013 BCHRT 302 [
[72] After considering all the circumstances, and recognizing that I have the discretion, on a principled basis, to award all or part of any wages lost as a result of discrimination, I am persuaded to order UBC to compensate for Dr. Kelly’s wage loss to January 1, 2016 in accordance with the findings set out above.
[52] The authority to award compensation is provided by s. 37 the Human Rights Code:
37(1) …
(2) If the member or panel determines that the complaint is justified, the member or panel
…
(d) if the person discriminated against is a party to the complaint, or is an identifiable member of a group or class on behalf of which a complaint is filed, may order the person that contravened this Code to do one or more of the following:
…
(ii) compensate the person discriminated against for all, or a part the member or panel determines, of any wages or salary lost, or expenses incurred, by the contravention …
[53] Mr. Justice Savage, then in the Supreme Court, interpreted this provision as permitting the Tribunal to consider common law principles of damages, but held that it was essentially a matter of discretion:
[34] I cannot see how it can be said that the Tribunal erred in its approach. It found it necessary to establish causation. However, in considering an award, causation alone is not sufficient. The statutory language of s. 37 allows the Tribunal to consider issues similar to those considered by courts, regarding remoteness, intervening acts, and a duty to mitigate. But the Tribunal was not bound to apply the precise legal tests developed by courts of law, and it found that the amount of compensation was "a matter of discretion, to be exercised on a principled basis, in light of the purposes of the remedial provisions of the Code, and the purpose of the award". [Gichuru v. Law Society of British Columbia (No. 3), 2013 BCSC 1325,
[54] Mr. Justice Savage went on to say that the Tribunal could apply a future loss of earnings analysis:
[43] The Tribunal found at para. 307 that Mr. Gichuru had not "established that any permanent impairment to his earning capacity resulted from the discrimination found in Gichuru No. 4". The Tribunal did not accept that the consequences of the act of discrimination resulted in any permanent loss. In personal injury cases where loss of earning capacity is compensable despite the plaintiff incurring no diminution in income, the plaintiff must establish that the injury sustained created a substantial possibility of future loss. In personal injury cases this might be established by establishing such things as a possible requirement of future surgery or treatment, an attenuated working life, or a limitation on realistic alternate endeavors. I fail to see how this type of analysis could apply to Mr. Gichuru in light of the Tribunal’s findings. In any event, assuming that such loss is compensable (as found by the Tribunal), the Tribunal could (but was not required to) apply the loss of earnings capacity analysis found in personal injury cases to a determination of compensation for "wages or salary lost" under s. 37(2)(d)(ii).
[55] In the present case, 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. This may be a case of first impression, as it seems that no other instance of damages for delayed entry beyond the training period has been reported. However, in my view, the novelty of the remedy is not, absent any error in principle or arbitrariness, a ground for interfering with it. The remedy decision is discretionary and must be shown to be patently unreasonable: Administrative Tribunals Act, S.B.C. 2004, c. 45, ss. 59(1), (3) and (4); Gichuru, 2014 BCCA 396 [
[56] I am unable to find any impediment to the future loss award in the judgment of the Federal Court of Appeal in Tahmourpour or in the ultimate resolution of the case by the Canadian Human Rights Tribunal: 2010 CHRT 34 [
[47] As I understand the Tribunal’s decision, there were no other facts that were taken into account in determining the amount of the monetary compensation awarded to Mr. Tahmourpour. I am unable to discern from the Tribunal’s decision why the Tribunal chose, as the end point of the second time period, the date on which Mr. Tahmourpour accepts or rejects an offer of re-enrolment, as opposed to an earlier fixed date. I agree with the judge that the Tribunal did not put its mind to the question of when, after the end of the grace period, the discrimination suffered by Mr. Tahmourpour ceased to have an effect on his income earning capacity. In the absence of an explanation from the Tribunal, that part of the Tribunal’s award providing for the top-up cannot be found to be reasonable. [Emphasis added.]
[57] On reconsideration, a member of the Tribunal found no causal connection between the discrimination and any loss beyond the two-year grace period: 2010 CHRT 34 [
[58] By contrast, in the present case, there is a clear causal link between the discrimination and the delayed entry. Tahmourpour enunciated no principle which would restrict compensation for a future loss caused by the discrimination.
F. Was the award of damages for loss of dignity patently unreasonable?
[59] The judge set aside the award of $75,000 for injury to dignity, feelings and self-respect on the ground that it was patently unreasonable to give a figure more than twice the amount for similar discrimination. He found that it was arbitrary because it was not based on evidence or reason.
[60] I respectfully disagree with this decision. 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. I agree with the view expressed by the Tribunal in Gichuru [
[253] There is no cap on injury to dignity awards under the Code, whether de facto or otherwise. At one time, there was a statutory limit on awards of this nature: that $2,000 limit was removed in 1992. Since that time, injury to dignity awards have steadily increased. In Guzman v. T. (1997),
[61] It is not a patently unreasonable error to exceed the "range", and the judge was incorrect in so finding. No other error in principle has been identified.
[62] As to whether the award was based on the evidence, the Tribunal found that the respondent suffered acutely as a result of the termination; amongst the effects of his emotional hardship it listed depression, dejection, disturbance with personal relationships, embarrassment, and despair. It is for the Tribunal to measure the weight of these things, not a reviewing judge.
[63] In his reasons, the judge suggests that the respondent stands in no different position than any other victim of discrimination who lost a job where the level of damages peaks at $35,000. Apart from intruding into the Tribunal’s realm, the error in this reasoning lies in the fact that the termination effectively ended the respondent’s prospect of any job as a practising physician. The Tribunal was aware of the other awards and decided that this case was different. In order to say the Tribunal’s award was patently unreasonable, it was necessary for the judge to find facts (contrary to the Tribunal) that the appellant’s circumstances were not unique (see his reasons at para. 181).
[64] I would therefore allow the cross appeal and restore the Tribunal’s award for injury to dignity.
V. CONCLUSION
[65] For the foregoing reasons, I would dismiss the appeal. I would allow the cross appeal and restore the Tribunal’s award for injury to dignity.