B.C. Human Rights Tribunal Orders Record Setting $75,000 Damage Award in Discrimination Case
Dr. Kelly was a medical resident at the University of British Columbia (“UBC”). After failing his first assignment in the pediatrics rotation and continuing to struggle in the family medicine rotation, he disclosed to the Program that he had a history of anxiety and depression and suffered from Attention Deficit Hyperactive Disorder also known as “ADHD”, as well as a Non-Verbal Learning Disability (“NVLD”). The Program referred him to a psychiatrist for assessment and several accommodations were recommended to assist Dr. Kelly in the successful completion of the residency program. Despite the implementation of a number of the recommended accommodations, Dr. Kelly continued to underperform and was dismissed by the Program Director, Dr. Kernahan, for unsuitability. He was provided with two month’s severance pay and then collected employment insurance. The Program Director testified at the hearing that he was dismissed because his deficits (ADHD and NVLD) were “life-long” and he lacked the basic skills necessary for successful completion of his residency training.
The Tribunal in its decision concluded that Dr. Kelly’s dismissal was discriminatory and in contravention of the Human Rights Code noting that despite its efforts to accommodate Dr. Kelly’s disabilities, UBC ultimately relied on the life-long nature of his disability as a reason to conclude that he could not complete the requirements of UBC’s medical residency program.
The Tribunal in assessing damages considered a number of factors:
- That Dr. Kelly experienced a 6 year delay in completing residency training resulting in lost opportunity to commence medical practice;
- That Dr. Kelly had a life-long passion to practice medicine and therefore the discrimination had a magnified, serious and detrimental effect;
- That Dr. Kelly suffered deep humiliation, embarrassment and loss of self-esteem as a result of his dismissal;
- That Dr. Kelly experienced further embarrassment in subsequent job interviews when he had to explain why he was not pursuing his medical career;
- That Dr. Kelly was forced to move back home with his parents for financial reasons;
- That Dr. Kelly experienced strained relationships and became socially isolated as a result of the dismissal; and
- That Dr. Kelly was in a vulnerable position as a student and medical resident suffering from a disability and was dependent upon UBC to accommodate his disability.
The Tribunal ordered reinstatement of Dr. Kelly into the Residency Program and awarded the following amounts to Dr. Kelly:
- $385,194.70 as damages for lost wages; and
- $75,000.00 as damages for injury to dignity, feelings and self-respect
Further Reading: Kelly v. University of British Columbia, 2013, 2013 BCHRT 302