The Growing Cost To Employers For Failing To Accommodate Disabled Employees

Two recent appellate court decisions from BC and Ontario illustrate the significant increase in the damages being awarded where an employer breaches its duty to accommodate a disabled employee. These decisions confirm the broad remedial powers of human rights tribunals, illustrate the importance of a properly formulated disability management program, and emphasize the employer's duty to accommodate a disabled employee.

Remedial Powers of Human Rights Tribunals

In addition to an award for the loss of wages incurred as a result of a discriminatory action, a human rights tribunal has jurisdiction to award a complainant compensation for injury to their "dignity, feelings, and self-respect". These awards are not meant to punish the respondent, but are meant to address the effect of the discrimination on the individual complainant.

Prior to 1992, BC human rights legislation limited damages for injury to dignity to $2,000.00. In 1992, this legislation was amended and the limit was removed. Awards for injury to dignity have steadily increased since that time. In 2008, the Tribunal made an award of $35,000.00 for a complainant's injury to dignity, which remained the highest award until 2013.

In addition to monetary compensation, the Tribunal can make declaratory orders that the respondent engaged in discriminatory conduct, order that the respondent cease and refrain from further discriminatory conduct, and/or make remedial orders, such as ordering that a complainant be reinstated to their position if they were dismissed for discriminatory reasons.

As the cases below illustrate, the financial impact of an employer's discriminatory action - whether that action was intentional or not - can result in very significant damages.

University of British Columbia v Kelly, 2016 BCCA 271

Last year, the BC Court of Appeal upheld the highest ever award for injury to dignity from the BC Human Rights Tribunal1. The complainant was awarded $75,000.00 to compensate him for injury to dignity following his removal from the University of British Columbia's Medical Residency Program.

Dr. Kelly was a resident in family medicine through the UBC Program. He suffered from attention deficit hyperactivity disorder ("ADHD") and a non-verbal learning disorder ("NVLD"). He experienced significant difficulty in completing UBC's Program, despite UBC's ongoing attempts to modify the program for him. UBC ultimately determined that Dr. Kelly lacked the requisite skills needed to complete the Program, and could not be further accommodated without undue hardship to UBC. This led to Dr. Kelly's removal from the...