Human Rights Office

Human Rights Office
Human Rights Office

Kelly v. University of British Columbia 2012 BCHRTD no. 32 (CanLII) (REASONS FOR DECISION) 

Kelly v. University of British Columbia (No. 4), 2013 BCHRTD 302 (CanLII) (REMEDY)

Note: This case was previously discussed at the February 19, 2013 HRLG meeting on the topic of accommodation. When the February 19, 2013 meeting occurred no remedy had been awarded in this case. This case has been chosen for the December 8, 2014 HRLG meeting to showcase the increasing level of monetary damages being awarded in human rights cases. This case summary will focus on the damages awarded in Kelly v. University of British Columbia 2013 BCHRTD no. 4.

Summary:

The applicant, Dr. Carl Kelly has four documented disabilities: attention deficit disorder, inattentive type (ADHD), non-verbal learning disability (NVLD) and intermittent anxiety/depression. Dr. Kelly was a resident in the UBC Family Practice Residency Program and an employee of its affiliate, the Providence Health Care Society from 2005 to 2007, when he was terminated from the program and dismissed from employment on the basis of unsuitability. During his residency, fellow residents came forward with a concern about an inappropriate e-mail Dr. Kelly had sent to the resident group. It was a satirical account of taking a patient’s sexual history. The concern around this e-mail was handled informally. Dr. Kelly apologized to his peer, who forgave him and who asked the program not to terminate his residency on account of the e-mail. In this case it was found that while the e-mail incident was never investigated or resolved formally, it was the factor that led the program to dismiss Dr. Kelly, first by granting him an involuntary leave of absence, then by rejecting as unfeasible the recommendations for accommodation put forth in a subsequent psycho-neurological assessment (that it had ordered him to take) and a professional assessment of that assessment (that it had agreed to read upon the request of Dr. Kelly’s union). The program dismissed Dr. Kelly as unsuitable on account of the life-long nature of his disability (ADHD and the unfeasibility of implementing the psychiatrist’s recommended accommodations. 

Question(s) to be Determined:

1. Did the University of British Columbia discriminate against Dr. Kelly on the basis of disability?

Findings:

1. Did the University of British Columbia discriminate against Dr. Kelly on the basis of disability?

YES

Reasoning:

1. In this case it was found that the University of British Columbia did discriminate against Dr. Kelly on the basis of disability. This finding was made based on the following reasoning:

-It made stereotypical assumptions about Dr. Kelly’s disability (he is probably psychotic and dangerous) based on one inappropriate email which was never investigated formally and for which he was never disciplined.

-They failed to take into consideration that his academic trajectory was positive and that with accommodation he was able to succeed.

-They provided no proof that the accommodations would cause any legitimate undue hardship except inconvenience and morale problems amongst the residents who would have to shoulder extra responsibility due to re-bundling of tasks.

-They had an exaggerated interpretation of many of the recommended accommodations (what they involved and how often they would have to be implemented) and failed to see that in his last two rotations he had succeeded without most of them.

Remedies:

In this particular case Dr. Kelly was awarded over $460,000 dollars in damages.

In awarding damages in this case the tribunal considered both Dr. Kelly’s actual and projected earnings had he not be terminated from the program. The University of British Columbia argued that the tribunal needed to consider the possibility that Dr. Kelly might not have completed the program. In this case the tribunal ordered the University of British Columbia to compensate for Dr. Kelly’s wage loss to January 1, 2016. In total, the University of British Columbia was ordered to pay to Dr. Kelly $385,194.70 as compensation for lost wages. This total amount was worked out using a formula considering actual and projected earnings. Also factored into this total amount was a contingency deduction derived from the possibility that Dr. Kelly might not have completed the program. 

Dr. Kelly sought $75,000 in damages for injury to his dignity, feelings and self-respect. It was found that due to the gravity of the effects of the discrimination a substantial award for damages for injury to dignity, feelings and self-respect was warranted. In this case the University of British Columbia was ordered to pay Dr. Kelly $75,000 in damages for injury to his dignity, feelings and self-respect.

1. $385,194.70 as damages for lost wages;

2. compensation for expenses incurred as a result of the discrimination as setout earlier in this decision;

3. a tax gross-up;

4. $75,000 as damages for injury to dignity, feelings and self-respect; and

5. Pre-and post-judgment interest in accordance with the provisions of theCourt Order Interest Act.