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Should Economics Play a Greater Role in the
Adjudication of Human Rights Claims?
The Examples of Injury to Dignity andthe Duty to Accommodate

David Lewis and Ian Currie

CSLS Research Report 2021-04
August 2021

Should Economics Play a Greater Role in the Adjudicationof Human Rights Claims? The Examples of
Injury to Dignity and the Duty to Accommodate
David Lewis* and Ian Currie**

ABSTRACTThis paper examines whether economic analysis can help provide firmer foundations for the
adjudication of human rights claims in establishing monetary awards for injury to dignity and, in
accommodation cases, better capturing benefits for society. In relation to injury to dignity, it
explores the prospects for establishing an objective evidentiary baseline through a program of
independent economic research. In the area of accommodation, the paper considers if the wider
use of Cost-Benefit Analysis could help prevent undervaluation of accommodation and whether
governments should help cover the incremental cost of accommodation in some cases.

*David Lewis served as a Principal Economist with the U.S. Congressional Budget Office after
which he founded the firm HLB Decision Economics. HLB was acquired by HDR in 2005 where
he served as a Senior Vice President and Chief Economist until retiring in 2014. Active as an
economist in the human rights field for more than 40 years, Dr. Lewis has conducted numerous
economic studies and regulatory analyses under the Americans with Disabilities Act and cases
brought under the Canadian Charter of Rights and Freedoms. He is a Research Associate at theCentre for the Study of Living Standards.
** Ian Currie is a policy advisor with the Canadian federal government’s Department of
Innovation, Science and Economic Development (ISED). Over the course of his career he has
provided policy research services to many Canadian federal government organizations. He was amember of the Canadian negotiating team for the Canada-US Free Trade Agreement. He is a
Research Associate at the Centre for the Study of Living Standards.

The authors are grateful to Andrew Sharpe, Executive Director of the Centre for the Study of
Living Standards, for his guidance and insight throughout the development of this study, and to
David Baker, Everett Ehrlich, and May Raad for their encouragement and the generosity of theirtime and expertise as the study evolved. The authors also thank the following for providing
advice and insight: Dennis Bruce, Olga Kosta, Dan Herman, Ewa Tomaszewska, anonymous
reviewers, and our editor, Angela Waldie. The authors also thank the British Columbia Human
Rights Clinic (BCHRC) for directing us to their public data sources.

The views and findings contained in this paper are those of the authors in their personal
capacities and do not reflect the views of ISED, the Government of Canada, the British
Columbia Human Rights Tribunal (BCHRT), the BCHRC, HDR, or any of the many individuals
who provided advice and insight during the course of the paper’s development.

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Should Economics Play a Greater Role in the Adjudicationof Human Rights Claims? The Examples of
Injury to Dignity and the Duty to Accommodate

Table of Contents
Executive Summary ....................................................................................................................................... i
1.0 Introduction ............................................................................................................................................. 1
1.1 Plan of the Paper ................................................................................................................................. 3
2.0 Economic Analysis and Human Rights: An Overview ........................................................................... 3
3.0 Economic Analysis and the Adjudication of Human Rights .................................................................. 5
3.1 The institutional and legal context ...................................................................................................... 5
3.2 Measuring how economic analysis is reflected in human rights decisions ......................................... 8
3.3 Economic analysis and remedies for intangible damages to human dignity..................................... 10
3.3.1 What is dignity? ......................................................................................................................... 10
3.3.2 Purpose of monetary awards for damages to human dignity ..................................................... 11
3.3.3 Establishing monetary value for injury to dignity—Canadian and international approaches .... 12
3.3.4 Human rights awards for injury to dignity by Canadian tribunals ............................................. 15
3.3.5 Analysis of BC Human Rights Tribunal awards by grounds for award..................................... 16
3.4 Economic analysis and the duty to accommodate up to the point of undue hardship ....................... 22
4.0 Concluding Observations ...................................................................................................................... 24
References ................................................................................................................................................... 26
ANNEX I: British Columbia Human Rights Tribunal Award Decisions on Injury to Dignity .................. 33
Descriptive Statistics ............................................................................................................................... 33
Empirical Analysis of Growth in Dignity Awards by the BC Human Rights Tribunal ........................... 38
ANNEX II: International Scan of Legislative Limits on Undue Financial Burden .................................... 45

Should Economics Play a Greater Role in the Adjudicationof Human Rights Claims? The Examples of
Injury to Dignity and the Duty to Accommodate
Executive Summary
In 2018 the Human Rights Tribunal of Ontario awarded a victim of sexual harassment$200,000 in damages for injury to her dignity, feelings, and self-respect. The amount of thisaward represents one of the highest to date in Canada for injury to dignity. However, economic
analysis was not used in arriving at the quantum of the award in this case and, more generally, israrely central to the adjudication of human rights claims in Canada or other jurisdictions. This
paper explores whether economic analysis can help courts and tribunals resolve challenges informulating decisions and monetary remedies for human rights claims. Two areas are examined:
injury to dignity and the duty to accommodate.
The notion of human dignity underpins all human rights. Valuing dignity represents oneof the most vexing problems in the adjudication of human rights cases. Some within the
Canadian legal community have suggested that monetary awards for the loss of dignity rights
have been too low. Others have pointed to recent tribunal awards for injury to dignity as
representing new high watermarks that demonstrate the willingness of tribunals to considerablyincrease the quantum of awards. However, no independent evidence is cited on what levels might
be more appropriate.
Accommodation and its corollary, accessibility, represent society-wide issues that span
many fields, including human geography, urban planning, and human rights. Under the duty toaccommodate, human rights legislation requires employers and service providers to change rules,
policies, or practices to enable all persons to participate fully in society.
Monetary remedies in both areas are, in some instances, capped by legislation. Injury todignity is limited by statutory caps on monetary awards for infringement of dignity in somejurisdictions, and statutory language limits monetary accommodation awards up to the point of
undue hardship for those with a duty to accommodate.
The common challenge for adjudicators in both areas arise from the quantification of
intangibles and non-monetary harms. Can economic analysis help?
Awards for Injury to Dignity
This paper reports on the results of an empirical analysis conducted by the authors using
data on the British Columbia Human Rights Tribunal (BCHRT) monetary awards forinfringement of dignity and by ground of discrimination. Four main findings of the empiricalanalysis emerge:i•average awards for injury to dignity vary markedly by area of discrimination over theperiod of the study (1998-2020 third quarter);•growth in dignity awards kept pace with or exceeded inflation in each of fourteen areas of
discrimination over the period of the study;•

while there has been constant-dollar growth in the aggregate of all dignity awards, suchgrowth has been concentrated in six of the fourteen areas of discrimination, namely:
racial discrimination, disability, gender, gender identity or expression, sexual harassment,
and pregnancy; and,•racial discrimination and gender-related issues are found to dominate growth in awards
for injury to dignity.

Should some grounds for discrimination be expected to draw higher average monetaryawards for injury to dignity than others? Or, over the long-term and across many different cases,
should average awards for injury to dignity be expected to converge and growth simply follow
the rate of inflation? Some evidence is emerging in support of a convergence hypothesis, at leastin the case of the BCHRT. For example, average BCHRT dignity awards for disability andsexual harassment, two quite different forms of discrimination, show strikingly similar averageawards for injury to dignity over our 23-year study period of $7,121 and $7,408 respectively.
Moreover, these two categories show the highest volume of cases, together accounting for justunder 60 percent of total cases over the study period.
The empirical analysis of BCHRT dignity awards does not directly answer the questions
posed above. But it does suggest that economic approaches might help establish whether awards
for injury to dignity are, as some observers believe, too low and whether the magnitude ofawards should converge. Such economic valuation can provide a baseline against which todevelop monetary remedies without dictating what level of awards may be just under theparticular circumstances of each case.
The Duty to Accommodate Up to the Point of Undue Hardship
Under federal and provincial human rights codes employers and service providers have aduty to accommodate employees and others through removing discriminatory barriers related toprohibited grounds of discrimination. This duty applies “up to point of undue hardship” for theentity providing the accommodation. Although some provincial policy guidelines indicate thatthe benefits of accommodation are to be taken into account, cost represents the dominant factor
when tribunals determine whether a respondent’s claim of undue hardship is legitimate. Not
accounting for social and economic benefits creates a risk that undue hardship claims may
succeed even though the accommodation in question would result in net benefits to society.
Whatever view one may take on undue hardship defences and decisions today, there
remains the reality that failure to account for benefits in specific circumstances can leave society
without the full improvements justified by the very same analysis that established theiirequirements in the first place. This gives rise to key questions: If benefits accrue to society but
not to the employer or service provider, is there an economic rationale for some form ofgovernment assistance to address what might be seen as a market failure? In cases where thebusiness in question is too small, or is unable for some other legitimate reason, to finance therequired accommodation, regardless of a positive cost-benefit outcome, should the responsibility
fall on government to provide the necessary assistance?
In accommodation cases, the undue hardship defence currently relies largely on a costaccounting approach. The wider use of Cost-Benefit Analysis, conducted according to guidelines
established by human rights tribunals or commissions, could help ensure against theundervaluation of accommodation recognized by the Supreme Court of Canada to exist under thecurrent approach. This paper also considers whether governments should help cover the cost ofaccommodation in cases where externalities mean that benefits would not accrue to the particularorganization subject to challenge.
The authors of this report find that the application of economic analysis in the
adjudication of human rights claims could lead to higher financial awards for injury to dignity
and fewer successful claims of undue financial hardship in cases addressing the duty toaccommodate. At the same time, the authors conclude that a program of ongoing empiricaleconomic research is required to validate this finding, and to provide tribunals with a baseline of
economic evidence to assist adjudicators in the task of establishing awards on a case-by-casebasis.

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Should Economics Play a Greater Role in the Adjudicationof Human Rights Claims? The Examples of
Injury to Dignity and the Duty to Accommodate
1.0 Introduction
Human rights principles are often reflected in economic thought, methods, and policy,
but economic analysis rarely enters into the legal adjudication of human rights claims. This paper
explores whether scope exists for economic analysis to help courts and tribunals resolve
challenges in formulating decisions and remedies for human rights claims. Two areas are
examined: injury to dignity and the “duty to accommodate.” Under this duty, human rights
legislation requires employers and service providers1 to change rules, policies, or practices toenable all persons to participate fully in society.
Remedies in both areas can take various forms. In some jurisdictions, there are statutory
caps on monetary awards for infringement of dignity. Across many jurisdictions, there exists
statutory language to limit accommodation awards up to the point of undue hardship for thosewith a duty to accommodate. The common challenge for adjudicators in both areas arises fromthe quantification of intangibles. Can economic analysis help?
The authors of this report believe it can. With respect to injury to dignity, the economic
analysis of intangibles has potentially much to offer but has thus far been largely untapped. In
the area of duty to accommodate, economic analysis offers a proven method—namely, CostBenefit Analysis—for use in evaluating the potential net benefits (benefits minus cost) in theconsideration of claims of undue financial hardship that may be claimed by those with such aduty.
The protection of human dignity is an inalienable human right under the Universal
Declaration of Human Rights proclaimed by the United Nations (UN) General Assembly in1948. It has been ratified by Canada, the United States, and 192 other countries. On the other
hand, the protection of the right to accessible, barrier-free communities for people withdisabilities belongs to a class of human rights that are acquired through legislative initiatives.
Whereas inalienable rights are, in theory, rights due to individuals regardless of financial cost,
cost may be a consideration in granting access to acquired rights. Even in the case of inalienable
rights, cost can play a role in protecting them—witness the existence of statutory caps on awards
for injury to dignity.

The term “service provider” may refer to profit, not-for profit entities, and public entities. In some cases, such as
the Accessible Canada Act (S.C. 2019, c 10, s 2), the term carries specific meaning set out in the statute. The use of
the term “service provider” has come under some criticism in healthcare circles as ambiguous and confusing and as
representing a commodification of health care professionals (Beasley, Roberts & Goroll, 2021).
1

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In cases involving injury to dignity, a central issue for adjudicators is the monetization ofdamages.2 Legal scholar Jason Varhuas writes that the courts have struggled and largely failed to
articulate a coherent, rational, and worked out law of human rights damages, including for
injuries to human dignity (Varhuas, 2016). He finds little guidance in the legal authorities on theapproach to be taken when establishing the amount of an award of damages. According to
Varhuas, incoherence, inconsistency, and unfairness are the inevitable results.3 As Canadianlegal scholar Kent Roach explains, after initial optimism, damages have become a disappointing
remedy for human rights violations in Canada, New Zealand, South Africa, the United Kingdom,
and the United States (Roach, 2019). In 2019, the Australian Human Rights Commission(AHRC) reported that the monetary awards by Australian courts in sexual harassment cases havebeen low. The AHRC recommended that further research be conducted on the award of damages
in such matters (Australian Human Rights Commission, 2019). In response to thisrecommendation, a committee of the Law Council of Australia submitted that: “Committee
members have also identified that greater clarity on the issue of monetary compensation, andhow to classify and calculate it would be welcome” (Law Council of Australia, 2019, p. 35).4
In human rights cases involving accommodation, it is often a challenge to achieve abalance of costs and benefits that arise where cost is claimed to be a legitimate constraint togranting rights claimed by individuals. Courts and tribunals in Canada and other jurisdictions, aswell as legal scholars, are looking for means by which to balance claims of undue cost to theemployer or service provider with the benefits of granting acquired rights. These acquired rights
derive from such landmark legislative initiatives as the Accessible Canada Act, the Americans
with Disabilities Act, and Australia’s Disability Discrimination Act.5
A 2007 Supreme Court of Canada (SCC) decision called for a broader perspective on
benefits. In Council of Canadians with Disabilities v. VIA Rail,6 the Court reviewed the decisionof the Canadian Transportation Agency (CTA) ordering Via Rail to modify passenger rail cars tomake them wheelchair accessible. The Court found that, in almost every case, a factor relied on
to justify the continuity of a discriminatory barrier is the cost of reducing or eliminating it toaccommodate the needs of the person seeking access and that this is a legitimate factor toconsider. However, the Court also cited the SCC admonition in the case of Grismer7 that
tribunals must be wary of putting too low a value on accommodating the disabled.
How can such value be ascertained? In Canada and abroad, members of the legal
community, the courts, and those charged with adjudicating human rights cases often confront
For ease of exposition in this paper, the single term “dignity” is used although in a Canadian domestic humanrights context the typical formulation is often “dignity, feelings and self-respect.”3
Varhuas’ book Damages and Human Rights (2016) along with his other scholarly work has been cited by the UK
Supreme Court, English High Court, High Court of Australia, Federal Court of Australia, Victoria Court of Appeal,
New Zealand Supreme Court, and New Zealand High Court.
4
The Law Council, which was established in 1933, represents 16 Australian state and territory law societies and bar
associations.
5
A list of illustrative national legislative initiatives is found in Annex II.
6Council of Canadians with Disabilities v. VIA Rail, [2007] 1 S.C.R. 650.
7
British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights), [1999] 3
S.C.R. 868. [Grismer].
22the challenge of determining monetary awards for injury to dignity and how to deliver decisionsin accommodation cases that better capture benefits for society. This paper examines whether
economic analysis could provide firmer foundations in the adjudication of human rights cases inthese two areas.8

1.1 Plan of the Paper
This paper first discusses the relationship between human rights and economic analysis,
how it has evolved, and where it stands today. It then provides an overview of selected
institutional and legal features of the adjudicatory system for human rights within Canada. It
explores the role of economic analysis in the Canadian adjudication of, and remedies for, humanrights cases within this institutional and legal context: first in decisions on injury to dignity, andthen in decisions on accommodation up to the point of undue hardship. It then discusses how
economic analysis might contribute to the adjudication process and the determination ofremedies. The concluding section presents observations on the implications of thesecircumstances for strengthening the role of economic analysis in the Canadian human rights
adjudicatory process.

2.0 Economic Analysis and Human Rights: An Overview
Classical welfare economic analysis defines an improvement in the allocation of
resources as a shift in resource allocation in which any further change would make someone
worse off and no one better off.9 Under this rule there can be many resource allocations that
represent maximum utility (benefit) for society. Traditional welfare theorists regarded value
judgements about which allocation is better or best as the province of others, such as policy
makers and elected officials, not economists.
Welfare economic analysis has moved beyond its grounding principle of maximizing
utility—achieving the greatest good for the greatest number. In parallel with the 1948 UN
Declaration on Human Rights and subsequent evolution of human rights law and practice,attention in economic analysis has turned from positivist utility-maximization to normative
aspects of distributional equity, fairness, and justice. John Rawls (1999) and Amartya Sen (2009)were influential in advancing the view that indifference in economic analysis to the distributionof resources, rights, and obligations is an ethical proposition of traditional welfare economic
analysis that is inconsistent with the institutional embrace of human rights.

8This paper is concerned with areas of economic analysis pertaining to the valuation of intangibles, namely
commodities, assets, goods, and services for which functioning markets from which to infer their monetary value donot exist. The paper is not concerned with the economic efficiency of rules and laws.
9
Vilfredo Pareto (1848–1923) injected scientific objectivity into the utilitarian ethical framework by defining what
constitutes an optimal improvement in utility (economic welfare). The definition constitutes a rule that states thatany social change is desirable that results in everyone being better off, or someone being better off and no one being
worse off, than before the change.

3

Analytical practices in economic analysis have also evolved. Ezra Mishan (1967) was
among the first post-WWII economists to quantify the non-market costs of environmental
pollution, demonstrating the power of economic analysis to address intangible effects andexpress their value in monetary terms. Since then, practices such as contingent valuation, statedpreference analysis, and hedonic pricing,10 alongside revealed preference analysis (often
regarded as the gold standard analytic approach) have become commonplace in regulatory
contexts.
These economic practices facilitate the valuation of intangible costs and benefits forwhich functioning markets, in which prices reflect value, do not exist. Such intangibles include
the value of human life for safety regulations, the economic value of air quality and greenhousegases, and people’s valuation of privacy.11They also include the valuation of what are known asexistence values. This refers to the value of goods and services among people who do not intend
to consume them but are nonetheless willing to share in the cost of ensuring their provision.
Examples include the value of species at risk and the existence value attached by able-bodied
people to communities that are fully accessible to people with disabilities.
Cost-Benefit Analysis (CBA) is routinely used to value intangible benefits and costs inestablishing government regulations. The scope of such analysis is outlined in the Treasury
Board of Canada’s Policy on Cost-Benefit Analysis (2018) and Cost-Benefit Analysis Guide(2007) and by the Office of Management and Budget in the United States (1993 & 2003). Steps
to expand the scope of CBA were introduced in the US under the Obama Administration (UnitedStates, 2011). Legal scholar Cass Sunstein was head of the Office of Information and Regulatory
Affairs when President Obama issued an Executive Order that made dignity an official part ofregulatory CBA.12 Action to extend the scope of CBA further have been taken through an
executive order issued by US President Biden. Equity and non-discrimination have been madeHedonic pricing is a model that identifies the internal and external factors and characteristics that affect an item’s
price in the market. As described by Hargrave (2020), hedonic pricing is most often seen in the housing market,
since real estate prices are determined by the characteristics of the property itself as well as the neighborhood orenvironment within which it exists. According to Hargrave, hedonic pricing captures a consumer’s willingness topay for what they perceive are environmental differences that add or detract from the intrinsic value of an asset or
property.
11
Estimates of the economic value (or cost) of carbon dioxide’s impact on global warming represents an example of
how economists value such intangibles. The cost of CO2 is currently estimated at about $50/tonne, and such
estimates are employed to help establish carbon-pricing policies and in the Cost-Benefit Analysis of “green”
investment proposals.
12
Sunstein has highlighted the importance of the 1995 case of Vande Zande v. Wisconsin Dep't of Admin as setting
important precedents for accessibility and accommodation issues under the US Americans with Disabilities Act(ADA) (Sunstein, 2007). On appeal, the decision of the Court, presided over by Judge Richard Posner, renowned forhis scholarly contributions in the field of law and economics, established two precedents. First, the Court ruled that
benefits matter as well as costs in making a determination of what constitutes undue financial burden. Second, theCourt established a narrow definition of benefit. The Court ruled that the harm involved was “merely stigmatic” (aninjury to dignity) and therefore too insignificant to warrant mandatory accommodation. However, in his critique of
the Court’s decision, Sunstein argues that stigmatic harms, notwithstanding the difficulty in quantifying them, go theheart of the human rights protected under the ADA. In effect Sunstein called for the quantification of human dignity
in the balancing of costs and benefits.
104

required considerations (United States, 2021).13 This will likely involve economists in making
recommendations from among different Pareto optimal positions, which, as discussed above, isrejected by traditional welfare theorists. Yet there are examples of the economic profession
already moving away from this restriction. For example, including equity considerations in theanalysis of pathways for economic development and poverty reduction is increasingly a common
practice (see, for example, World Bank, 2011).
On the one hand then, it seems that economics is poised to help in the adjudication ofhuman rights. On the other hand, contingent valuation and the various other economic
approaches to valuing intangibles are not without controversy and their potential use in the fieldof human rights adjudication comes with conceptual, technical, and administrative caveats.

3.0 Economic Analysis and the Adjudication of
Human Rights
3.1 The institutional and legal context
Canadian federal, provincial, and territorial human rights commissions and tribunals or
analogous institutions implement Canadian human rights legislation. They operate within acomplex legal setting.
At the provincial and territorial level, legislation includes various codes of human rightsthat apply to provincial, territorial, and municipal governments, businesses, non-profit
organizations, and individuals within their respective jurisdictions. There are commonalities
across provinces or territories with respect to protected grounds and areas, but there are also
some differences.14
At the federal level, the Canadian Human Rights Act of 1977 applies to businesses thatare federally regulated and to federal government entities regardless of where they are located.15
On July 11, 2019, the Accessible Canada Act came into force, creating new duties and functions
for the Canadian Human Rights Tribunal (CHRT). The Act creates new structures and roles todeal with compliance and enforcement, including a new Accessibility Commissioner as part of
US President Biden’s January 20, 2021, Memorandum to Heads of US Executive Departments and Agencies onModernizing Regulatory Review calls for procedures that take into account the distributional consequences ofregulations, including as part of any quantitative or qualitative analysis of the costs and benefits of regulations, toensure that regulatory initiatives appropriately benefit and do not inappropriately burden disadvantaged, vulnerable,or marginalized communities (United States, 2021).
14
See Canadian Centre for Diversity and Inclusion (2018) for a comparison of protected areas across federal andprovincial jurisdictions as of the end of 2017.
15
All legislation in Canada must be consistent with the Canadian Charter of Rights and Freedoms (1982). An
individual can only use the Charter to challenge a governmental decision, action, or law (such as a provincial humanrights code) on the grounds that it does not offer the protection to individuals provided by the Charter. For example,
while the Ontario Human Rights Code and the Charter share common objectives, and they are often interpreted inlight of one another, there are some important differences between the purposes of these statutes and ongoing debate
about how they should relate to each other (Ontario Human Rights Commission, 2015).
13

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the CHRT. In addition, the Act provides a new mandate to the CHRT to decide appeals wheneither the complainant or the regulated organization disagrees with a decision made by theAccessibility Commissioner (Canadian Human Rights Tribunal, 2019).
The principal administrative agency for human rights across many Canadian jurisdictions
is a commission. Commissions exercise a variety of functions as set out in their constitutive
legislation, including advocacy and education. But most commissions have two main functions:gatekeeping for entry to formal adjudication processes and mediation to resolve disputes before
they are moved to formal adjudication processes. There are exceptions. Amendments to the BC
Human Rights Code in 2003 eliminated the BC Human Rights Commission (although it was reestablished in 2018) and introduced a direct access model to the BC Human Rights Tribunal. In
Ontario, in 2008, amendments to the Ontario Human Rights Code introduced a direct accessmodel, with all applications filed with the Human Rights Tribunal of Ontario.
Tribunals or analogous bodies often work in conjunction with commissions to investigate
matters that are unresolved by commissions and matters of public interest related to human rights
infringements. Tribunal decisions are subject to judicial review. In Saskatchewan, the provincial
human rights tribunal was abolished on July 1, 2011. Its powers were transferred to the Court ofQueen’s Bench for Saskatchewan, which conducts hearings on cases referred to it by the
Saskatchewan Human Rights Commission. At the federal level, the Canadian Human Rights
Tribunal is the main enforcement body for provisions of the Canadian Human Rights Act.
However, other federal bodies, such as the Canadian Transportation Agency (CTA), may also
hear human rights complaints within their areas of jurisdiction.
Resolving human rights disputes before they enter formal adjudication processes isgenerally regarded as a good thing across all Canadian jurisdictions (see discussion in
MacNaughton, 2007). The number of disputes resolved through mediation is very typicallypresented by human rights commissions and tribunals as a key performance indicator (KPI) of
success. There is little public information available on the content of mediation settlements,
monetary or otherwise. It is not known what economic analysis, if any, is used during mediation
processes.
The legal context for awards in the case of injury to dignity or accommodation are at least
as complex, if not more so, than the institutional context. Damages for injury to dignity
constitute a subset of “general damages” but extend to compensation in other areas depending on
the legal context. Some within the international legal community suggests that establishing themonetary awards for human rights damages, including those for injury to dignity, could be better
achieved through existing legal paradigms, namely tort law.16 It is beyond the scope of this paper
to consider this legal debate, but it is noteworthy that Roach (2019) argues that the answer to the“disappointing remedy” for human rights violations is not to return to tort principles. Rather,

16

A tort is a civil wrong, as contrasted with a criminal wrong, for which the wrongdoer is said to owe a legal duty to
the injured party for conduct that falls below acceptable standards and for which the injured party can prove loss
resulting from the wrongdoer’s conduct (Wearing, 2019).

6

Roach suggests looking at public law approaches that allow principles of proportionality todiscipline and structure the exercise of remedial discretion.
Legislative caps on monetary awards for damages to dignity are another feature of theCanadian legal landscape for human rights adjudication. In Saskatchewan, the Court of Queen’s
Bench is limited to awarding up to $20,000 for injury to dignity, feelings, and self-respect. In
Manitoba, The Human Rights Code Amendment Act received Royal Assent on May 19, 2021.
Among other items, the amendment sets the maximum financial award for injury to dignity,
feelings or self-respect stemming from a human rights complaint at $25,000.17 Other provincial
jurisdictions (e.g., Ontario and British Columbia) have had legislated caps on monetary awards
for damages to dignity in human rights cases in the past, but this is no longer the case today.
The federal Canadian Human Rights Tribunal (CHRT) is limited by the Canadian
Human Rights Act to awarding an amount not exceeding $20,000 for any pain and suffering thatthe victim experienced as a result of the discriminatory practices.18 The Act makes no reference
to the term “dignity.” Nonetheless, the CHRT Guide to Understanding the Canadian Human Rights
Tribunal advises complainants to describe how the treatment they received affected them: “For example,
the Complainant may have had hurt feelings or felt a loss of dignity; lost money or income; theiremotional or mental health may have suffered; or, they may have lost an employment opportunity”(Canadian Human Rights Tribunal, 2016, p. 26). It is unclear how the CHRT may include injury todignity within its assessment of what monetary remedies for pain and suffering may beappropriate.
Dignity considerations are often found in the analysis sections of CHRT decisions.
However, the loss of dignity as a factor in arriving at monetary awards for pain and suffering isseldom if ever cited in the remedy sections of the CHRT decisions.
On April 8, 1999, the Honourable Anne McLellan, Minister of Justice, announced theestablishment of an independent panel to conduct a review of the Canadian Human Rights Act.
The panel was chaired by the retired Supreme Court of Canada Judge, the Honourable Gérard V.
La Forest. The panel’s report, delivered to the Minister in June 2000, states:
We also think that compensation for “pain and suffering” should be renamed to refer tocompensation for “dignity, feelings and self-respect.” The Act formerly referred tosuffering with respect to “feelings and self-respect.” We would add the term dignity as

Manitoba’s Minister of Justice and Attorney General said on third reading of the bill: “The bill caps the amount ofdamages in one category of award, that being the category of injury to feelings. It would cap that at $25,000. I would
want to make clear, the average complaint where you have an award in this category results in something like
$10,000. So this cap is being set well in excess of the average award. But, of course, there would be—there would
continue to be no cap whatsoever to exemplary damages, no cap whatsoever to compensation for financial losses,
losses pertaining to expenses or benefits.” (Manitoba, Legislative Assembly, Hansard, 42nd Leg., 3rd Sess, Vol. 66(May 19, 2021)).
18
Beyond awards for pain and suffering, the Canadian Human Rights Act permits the CHRT to order compensation
to the victim not exceeding $20,000 if the person who engaged in the discriminatory practice acted wilfully or
recklessly (commonly referred to as exemplary damages).
17

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the Supreme Court of Canada has recently stated in the Law case that “dignity” is at theheart of the concept of equality (Canadian Human Rights Act Review Panel, 2000, p. 7).
A formal federal government response to the panel’s report was not immediately
forthcoming. As late as 2004 the Chair of the CHRT, J. Grant Sinclair, wrote:
The government has had the report of the La Forest Panel in its hands for over four years,
and the time for “cut and paste” solutions is long past. Canada prides itself on its humanrights record; but if the promise of equality contained in the Canadian Human Rights Act
is to ring true, it is time for a comprehensive, well thought-out overhaul of the humanrights complaints process (Sinclair, 2004, p.3)
We have been unable to discover if the federal government provided a formal response to thepanel’s report.19
In the CHRT case First Nations Child and Family Caring Society of Canada et al. v.
Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada)20 theaward amount respected the $20,000 limits for any one individual. While the total award for all
individuals that may be covered by a discrimination complaint is far greater and may be viewed
as a systemic remedy, it does raise the question of whether economic analysis could be used tohelp judge the reasonableness of the cap on awards.21
In summary, human rights tribunals across Canada have the authority to award general
damages for breaches of their respective human rights codes, including but not limited todamages for injury, dignity, feelings and self-respect. However, the extent of this authority is
subject to their jurisdiction and constitutive legislation (i.e., it is different from that of courts).22
The legal landscape continues to evolve.

3.2 Measuring how economic analysis is reflected in human rights
decisions
Our starting point for assessing the role of economic analysis in human rights
adjudication is a keyword search of common economic terms (such as CBA) within human rights
decisions made by Canadian tribunals and, as a point of comparison, Canadian courts.23 In
19

An answer to an inquiry by the authors to the federal Department of Justice on whether a formal response to the
Canadian Human Rights Act Review Panel report was ever delivered has not been received at this time of writing.
20
First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Ministerof Indian and Northern Affairs Canada), 2016 CHRT 2.
21
This case and ongoing litigation raises issues respecting the authority of human rights tribunals to grant systemic
remedies in human rights litigation that are beyond the scope of this paper (see Brodsky et al., 2017, for a discussionof systemic remedies in a Canadian human rights context).
22
The choice of forum (e.g., human rights tribunal or the courts) for pursuing a human rights claim involves
numerous legal considerations as well as cost considerations for the complainant(s). See Flaherty (2018).
23
Future research could use rapidly advancing artificial intelligence, machine learning, and text analytics approaches
to interrogate CanLII textual decisions.

8

Canada, the non-profit Canadian Legal Information Institute (CanLII) has created a database of
court judgments from all Canadian courts, including the Supreme Court of Canada, federal
courts, and the courts in all of Canada’s provinces and territories. The CanLII database also
contains decisions from almost all tribunals nationally, including human rights tribunals.24 Table
1 (below) reports the results of a keyword search within the CanLII database of human rights
decisions from Canadian tribunals and courts.
Table 1
Keyword search results from decisions on human rights cases issued by Canadian humanrights tribunals and courts (2003-2013 and 2014-2019)*
Keywords

BY TRIBUNALS ALONE
2003-20132014-201918,555 Cases
16,968 Cases
Number of Instances
Number of Instances

BY COURTS ALONE
2003-20132014-2019
3,372 cases
3,764 Cases
Number of Instances
Number of Instances

BY COURTS & TRIBUNALS
2003-20132014-2019
21,927 Cases
20,732 Cases
Number of Instances Number of Instances

1,307

1,446

416

454

1,723

1,900

412

530

60

97

472

627

"Economic Evidence"

5

4

4

3

9

7

"Economic Analysis"

5

2

7

7

12

9

"Cost Benefit Analysis"

6

15

7

25

13

40

"Dignity" and"Cost Benefit Analysis"

2

5

4

21

6

26

"Dignity""Undue Financial Hardship"

Source: Authors’ calculations (2020).
*

The two periods were selected taking into consideration the temporal coverage of tribunal decisions within
the CANLII database as described in Footnote 24. Future research might consider different time periods
for analysis.

We examined the most recent six years for the second period (as compared with 11 years
for the first period) in order to test whether economic analysis might be emerging in more recent
cases. Table 1 (above) shows that the terms “dignity” and “undue financial hardship” are foundin the decisions published by both tribunals and courts, although more frequently in decisions
The coverage of human rights tribunals’ decisions recorded within CanLII varies by jurisdiction. For example,
CanLII has continuous coverage of 4,138 decisions by the BC Human Rights Tribunal since 2008, but only partial
coverage (2,645 decisions) prior to 2008; coverage of 110 decisions made by the Saskatchewan Human Rights
Tribunal (SHRT) prior to July 2011 and 3 decisions made by the Saskatchewan Human Rights Commission(SCHRT) during 2008. (As previously noted, the SHRT was abolished on July 1, 2011. Its powers were transferredto the Court of Queen’s Bench for Saskatchewan). CanLII also has continuous coverage of 689 decisions by the
New Brunswick Labour and Employment Board (NBLEB) since 2003 and partial coverage (72 decisions) issued
before 2003. However, not all the NBLEB decisions represent outcomes from human rights inquiries. The Board has
responsibilities for adjudicating a broad range of employment and labour matters beyond New Brunswick’s Human
Rights Act.
24

9

delivered by tribunals than those delivered by courts. The mention of economic analysis or
related economic techniques and concepts, such as CBA, is rare in the final text of decisions. It isalso rare in proportion to the use of terms such as “dignity” and “undue financial hardship.” Theterm “Cost-Benefit Analysis” appears in decisions more often in the 2014-2019 period (albeit
only 40 instances out of almost 21,000 cases) than in the 2003-2013 period (13 instances).
These results constitute suggestive but limited evidence of a more recognized role for
economic analysis in human rights adjudication processes and decisions in Canada today. But as
we shall now see, there is other evidence to consider, both qualitative and quantitative.

3.3 Economic analysis and remedies for intangible damages tohuman dignity
3.3.1 What is dignity?
Inevitably, larger questions loom even when the scope of inquiry is confined to monetary
remedies for damages to intangibles in human rights cases. What is human dignity? Under whatcircumstances may it be judged as being breached? How should compensation—monetary orotherwise—be assessed when dignity is breached?
The philosophical literature on human dignity relevant to answering such questions
stretches back at least to Immanuel Kant and the Enlightenment and, in theological thinking on
human dignity, long before that.25 These larger questions are relevant today. Consider theattention being given to human rights, including human dignity, by governments, human rights
organizations, and other stakeholders under conditions of today’s global pandemic. Consider alsothat the infringement of human dignity is one of the central issues within debates over privacy as
a human right in the digital age (for examples, see Office of the Privacy Commission of Canada,
2019, and Balsillie, 2021).
In 1999, the Supreme Court of Canada contributed its views on the idea of human dignity
in the context of section 15 of the Canadian Charter of Rights and Freedoms and the case Law v.
Canada.26 The Court’s unanimous decision, written by Justice Iacobucci, said that the purpose of
section 15 was to prevent the violation of human dignity and freedom.27 This decision included a
description of what human dignity means and a three-part test for determining whether anindividual’s section 15 rights had been violated, which was devised by the Court. Both the25

In 2007, Sir Robert Grant Hammond (1944-2019), a New Zealand jurist, law professor, and judge of the New
Zealand Court of Appeal, delivered a widely cited speech (Beyond Dignity) that reviews how human dignity has
been conceptualized over time and incorporated into law (Hammond, 2007).
26
Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R 497.
27
Section 15 of the Charter states: “Every individual is equal before and under the law and has the right to the equal
protection and equal benefit of the law without discrimination and, in particular, without discrimination based on
race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.”10

description of dignity and the test proved to be controversial. Subsequently, in R v Kapp,28 theSupreme Court of Canada said:
As critics have pointed out, human dignity is an abstract and subjective notion that, evenwith the guidance of the four contextual factors, cannot only become confusing anddifficult to apply; it has also proven to be an additional burden on equality claimants,
rather than the philosophical enhancement it was intended to be…Criticism has also
accrued for the way Law has allowed the formalism of some of the Court’s post-Andrews
jurisprudence to resurface in the form of an artificial comparator analysis focussed ontreating likes alike ([2008] 2 S.C.R. 483 at paragraph 22).

3.3.2 Purpose of monetary awards for damages to human dignity
When breaches to human dignity can be shown, many jurisdictions provide for monetaryawards, but these are regarded as one of several alternative remedies. Many tribunals recognize
the importance of apologies and other forms of non-monetary acknowledgement of breaches.
There are different views on the efficacy of non-monetary awards in human rights or othercontexts.
US law professor Dinah Shelton (2015) suggests that non-monetary awards can bedifficult to adjudicate, formulate, administer, and enforce, at least in an international humanrights law context.29 On the other hand, Canadian law professor Jeff Berryman (2017) suggeststhat non-monetary awards may be justified because the loss as experienced by the victim isactually lessened as a result of an apology or because the weight of policy arguments supporting
apologies.
A common law maxim often appears within the legal literature on remedies: For every
right, there is a remedy, and where there is no remedy, there is no right.30 But beyond this, themain rationales for providing monetary remedies in the field of human rights commonly include

28

R. v. Kapp, [2008] 2 S.C.R. 483.
There are examples of Canadian human rights cases where the applicant who suffered damages to dignity has
either explicitly not sought a monetary award for an infringement and even, in some cases, rejected a monetaryaward for damages that tribunals believed should have been made. For example, in a 2002 case before the BC
Human Rights Tribunal (Rainbow Committee of Terrace v. City of Terrace (2002 BCHRT 26)), the Complainant did
not seek a monetary award from the Respondent, stating that it did not wish the citizens of Terrace to be financially
penalized for the Respondent’s decision. The BCHRT adjudicator nonetheless stated: “I would have no difficulty, on
the evidence before me, in finding that there was significant injury to the dignity, feelings, and self-respect ofmembers of the Complainant. If requested, I would have made a monetary award under this head of damages and it
would have been in the higher range of the awards given by this Tribunal.”
30
Attributed to English Judge Sir William Blackstone (10 July 1723–14 February 1780).
29

11

restitution, compensation, rehabilitation, and deterrence.31 In general, punishment is not a factor
in setting award amounts except in the context of exemplary damages.32

3.3.3 Establishing monetary value for injury to dignity—Canadian andinternational approaches
Economic analysis seldom enters into setting the amount of an award for injury to dignity
in Canada and other foreign jurisdictions. Instead, common models for establishing the amountof award found in Canada and other jurisdictions include the application of various “decision
factors” (criteria); precedent; principles, including proportionality and interest balancing; andvarious forms of award banding.
Decision factors
In Canada, a 2005 Human Rights Tribunal of Ontario (HRTO) decision in the case of
Sandford v Koop33 has been influential. In this case, the HRTO accepted a submission from theOntario Human Rights Commission (OHRC) that drew on a variety of previous cases to set out
criteria that might be used in assessing the appropriate quantum of general damages. These
factors are:•humiliation experienced by the complainant;•hurt feelings experienced by the complainant;•a complainant’s loss of self-respect;•

a complainant’s loss of dignity;•

a complainant’s loss of self-esteem;•

a complainant’s loss of confidence;•the experience of victimization; and,•vulnerability of the complainant.34

In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Human Rights Tribunal of Ontario stated that “While
principles from other areas of law may be useful analogies, the Tribunal’s approach to the exercise of its remedial
discretion must be centered in the values of and statutory language in the Code. Code damages are meant tocompensate, not punish, and Code violations, unlike some other areas of law, arise in a variety of very different
social and legal contexts.” See also MacNaughton and Connell (2009) for general discussion of remedial powers of
Canadian human rights tribunals and, specifically, particular types of monetary and non-monetary remedial awards.
32“Exemplary damages” refers to an amount of money that someone who commits an offence has to pay, which isintended to be large enough to prevent them or others from committing similar offences in the future (Cambridge
Online Dictionary, 2021).
33
Sandford v Koop, 2005 HRTO 53
34
In 2016, one human rights lawyer’s review of factors and criteria drawn upon by the BC Human Rights Tribunal
in arriving at appropriate quantum for injury to dignity found that: “Recent decisions of the BC Human Rights
Tribunal have begun to lay out an analytical framework that counsel and parties can use to assess the facts of a caseand anticipate the possible range of a damage award. These decisions provide lists of factors that are roughly similar
31

12

The HRTO 2010 decision in Arunachalam v. Best Buy Canada,35 a case involving
harassment based on pregnancy, referenced these factors (“considerations”) and highlighted two
criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings,
and self-respect: the objective seriousness of the conduct and the effect on the particularapplicant who experienced discrimination. The first of these recognizes that the injury to dignity,
feelings, and self-respect are generally more serious depending, objectively, upon what occurred.
The more prolonged, hurtful, and seriously harassing comments are, the greater the injury todignity, feelings, and self-respect. The second criterion recognizes the applicant’s particularexperience in response to the discrimination.
It remains that no Canadian tribunal decision citing these or analogous factors or criteria
explains how they are actually applied in practice to arrive at awards or cite any evidence from
economic analysis in their support.
Precedent
In Canadian common law jurisdictions, the legal doctrine of stare decisis obligates courts
to follow historical cases when making a ruling in a similar case. The BC Human Rights
Tribunal states on its website that, in deciding compensation for injury to dignity, feelings, andself-respect, it compares the facts of the complaint to other cases with similar facts and usually
looks at recent cases (BC Human Rights Tribunal, 2021). Many Canadian human rights tribunals
take this same approach.
Principles, including proportionality and interest balancing
Roach (2019) reports that principles of proportionality play an increasingly dominant rolein human rights law to discipline and structure the exercise of remedial discretion.36 Accordingto Roach, principles of proportionality, such as interest balancing, can provide better tailoredguidance as to when alternative remedies or sometimes no remedy at all may be justified thanreliance on less nuanced absolute or qualified immunities. Roach cites the Supreme Court of
Canadian Charter decision in the case of Vancouver (City) v. Ward37 as one example ofproportionality in that Court’s reasoning. In Canada and other jurisdictions, the principle ofinterest balancing is sometimes applied and refers to instances where the decision to award
damages, and the quantum, are subject to a balancing of the individual interest against public

but not identical. A review of these lists reveals that there are several underlying concerns that are repeatedthroughout, even where they are not made explicit.” (Quail, 2016: 1)
35
Arunachalam v. Best Buy Canada, 2010 HRTO 188036
Jud Mathews (2017), Professor of Law at Pennsylvania State University, writes that, at the most basic level, theprinciple of proportionality captures the common-sensical idea that, when the government acts, the means it chooses
should be well-adapted to achieve the ends it is pursuing.
37
Vancouver (City) v. Ward, [2010] 2 S.C.R. 28

13

interest considerations, such as the importance of protecting public funds.38 Other principles forestablishing damages for intangibles are found in other jurisdictions.39
Banding
In some foreign jurisdictions, tribunals and the courts have taken into account ranges ofmonetary awards for injury to dignity.
In England, Wales, and Scotland, there is no formal limit placed upon the amount a court
can award. However, the senior appeal courts have set out a range of awards for injury to
feelings called the Vento scale,40 which is informally applied by various employment tribunals
hearing discrimination cases as well as by UK courts. It has been changed on occasion to take
into account the rate of inflation (United Kingdom Equality and Human Rights Commission,2018). For claims presented after April 6, 2021, the Vento bands are as follows: a lower band of£900 to £9,100 (less serious cases), a middle band of £9,100 to £27,400 (cases that do not meritan award in the upper band), and an upper band of £27,400 to £45,600 (the most serious cases),with the most exceptional cases capable of exceeding £45,600 (UK Tribunals Judiciary, 2021).
The criteria for applying the bands are within the discretion of the employment tribunals and thecourts. In general, awards made according to these bands are not intended to be punitive but
rather to be compensatory. Courts and employment tribunals seek to put the claimant back into
the same position (so far as is possible) as they would have been had the discrimination nothappened and to “compensate for genuinely injured feelings, not to punish the service provider”(United Kingdom Equality and Human Rights Commission, 2018, p. 3).
In the US, at the federal level, the Civil Rights Act of 1964 as amended has been called
the most comprehensive undertaking to prevent and address discrimination in a wide range ofcontexts (Congressional Research Service, 2020). Amendments in 1991 to Title VII of the Act
introduced a cap on damages in some discrimination cases ranging from US $50,000 for small
employers to US $300,000 for employers with more than 500 employees. These caps ondamages apply to discrimination on the basis of sex and also to cases brought pursuant to theAmericans with Disabilities Act.41 However, the caps do not apply to race or ethnicity
New Zealand’s Human Rights Act of 1993 provides that the New Zealand Human Right Tribunal must, in addition
to other matters specified in the Act, take account of the requirements of fair public administration and theobligation of the government to balance competing demands for the expenditure of public money (New Zealand,1993).
39
Rosalind English (2013) reports that, beyond the legal principle of equity, it is not clear what standards (orprinciples) are applied by the European Court of Human Rights (ECHR) in establishing the amount of monetarydamages for intangibles, including injury to dignity. Fikfak (2020) and Varhuas (2016) discuss how this uncertainty
has had implications for other countries that are party to the European Convention on Human Rights. This is due inpart to what is known as the “mirroring” approach. In a European context, mirroring refers to the notion that theprotections afforded by domestic courts should “mirror” the rights enforced by the ECHR. This concept has been arecurring feature of judicial discussions on the nature and extent of the Convention rights in domestic laws
(Masterman, 2012).
40
Vento is the name of a United Kingdom court case that established the scale.
41
In 2020 the US Supreme Court resolved a significant and debated question of coverage among federal courts ofappeals with respect to Title VII’s application to discrimination based on sexual orientation or gender identity. The
Court interpreted Title VII’s prohibition of discrimination “because of . . . sex” to prohibit discrimination based on
sexual orientation or gender identity (Congressional Research Service, 2020).
38

14

discrimination cases brought under an alternative statutory route (42 U.S.C. § 1981) or to cases
filed under state or local laws prohibiting employment discrimination (Bachman, 2017). The US
federal caps under Title VII have not been adjusted for inflation or any other reason since theirintroduction in 1991 (see Zehrt, 2013, for an overview of the legislative history of the caps).
The research program underlying this paper did not find any Canadian banding
requirements set out in statute or any guidelines that reference banding.42 However, someobservers consider that informal banding exists. For example, Monkhouse (2017) writes that in
Canada the low end of the monetary spectrum involves circumstances of a few incidents, lessserious incidents, and/or, in the case of sexual harassment, incidents that did not include physicaltouching. Conversely, the high end of the monetary spectrum includes multiple incidences,incidents of a serious nature, and physical assault and/or reprisal or loss of employment.
Monkhouse reports that such implicit banding reflects the view that an award for monetarycompensation must not be set so low as to trivialize the social importance of a human rights codeby creating a “licence fee” to discriminate.

3.3.4 Human rights awards for injury to dignity by Canadian tribunals
The level of awards by Canadian human rights tribunals over time has drawn government
and media attention. The 2012 Report of the Ontario Human Rights Review (Pinto, 2012) drewattention to the view from several stakeholder groups and individuals that the Ontario Tribunal
awards, particularly the general damages awards, are routinely too low. According to the report,
this creates a number of problems:•

a message that human rights and breaches of the Code are of limited importance;•

low damages awards impose a barrier on access to justice at the Tribunal. Access tojustice is denied when it is not economically feasible or worthwhile to pursue one’s rights
through the human rights system; and,•the risk that potential applicants may choose to pursue their human rights claims before
the courts, where possible, in order to obtain a greater award of damages in the civil
context.

Over the years since the Pinto report, some within the Canadian legal community havecontinued to suggest that monetary awards for the loss of dignity rights may be too low (e.g.,
Ranalli & Ryder, 2017; Doolittle, 2021).43 Others have pointed to recent tribunal awards for
42

Further research is required to confirm this preliminary research finding.
Ranalli and Ryder’s (2017) quantitative analysis of the textual decisions by the Human Rights Tribunal of Ontario
between 2000 and 2015 found that general damages awards continue to be too low to reflect the importance of theequality rights protected by the Ontario Human Rights Code, and that, after adjusting for inflation, the data reveals
that the range of awards has decreased in real terms. However, the descriptive statistics assembled by Ranalli and
Ryder for Ontario did not comprehensively cover award levels by ground of discrimination. Robyn Doolittle (2021)
reports that the damages these tribunals award are almost always small, typically between $5,000 and $35,000.
43

15

injury to dignity as representing new high watermarks that demonstrate the willingness oftribunals to considerably increase the quantum of awards (e.g., Sahdra, 2018; Weiler, 2021). Yet
no independent evidence is cited on what levels might be more appropriate. As far as we know,
no such evidence exists.
There is no national and public database of descriptive statistics maintained on humanrights awards made by Canadian tribunals for injury to dignity or, for that matter,accommodation. Individual tribunals may maintain their own in-house databases on awards
made over time and organized by ground, but if so, they are not available on tribunal websites orotherwise accessible to the public.44
Fortunately, the BC Human Rights Clinic (BCHRC)45 maintains a public textual report,
issued quarterly, on all injury to dignity decisions made by the BC Human Rights Tribunal since1998. The BCHRC report categorizes the BC Human Rights Tribunal’s injury to dignity
decisions by applicable section of the BC Human Rights Code and discriminatory ground(BCHRC, 2020). It further draws on the textual decisions of the BC Tribunal to identify somemore specific grounds, such as pregnancy and sexual harassment.

3.3.5 Analysis of BC Human Rights Tribunal awards by grounds for award
The results of our analysis of the BC Human Rights Tribunal awards for injury to dignity,
categorized by the grounds for making such awards, are presented in Annex I and summarized
below in Table 2.
There are 310 cases included in our database and under which awards were made for
injury to dignity over the study period (1998 to 2020-third quarter).46 As shown in Table 2, cases
involving disability as the primary grounds for discrimination constitute the largest share of allcases (almost 45 percent), followed by sex at 33 percent (gender, orientation, identity or
expression, sexual harassment, and pregnancy).
Table 2 indicates that average dignity awards over the period, adjusted for inflation, varya great deal by grounds for award. After adjustment for inflation, average awards range from alow of $1,346 for discrimination on the basis of marital status to a high of $16,979 fordiscrimination on the basis of political belief.
Table 2 also sets out the constant-dollar annual growth in awards for injury to dignity(see column 5), again categorized by grounds for such awards. Three main findings emerge fromthis analysis:

44

The BC Human Rights Tribunal website does provide a limited number of descriptive statistics on awards forinjury to dignity over time.
45
The BC Human Rights Clinic is operated by the Community Legal Assistance Society and funded by the BC
Ministry of Justice. The Clinic provides free representation to complainants who have cases before the BCHRT.
46
For reasons explained in Annex I, the number of cases included in our database will differ from case counts forthe same period maintained by the BCHRT and the BCHRC.

16

•

growth in dignity awards kept pace with or exceeded inflation in each of fourteenareas of discrimination over the period of the study;•

while there has been constant-dollar growth in the aggregate of all dignity awards(about six percent a year), such growth has been concentrated in six of the fourteen
grounds for discrimination;•

awards for injury to dignity involving racial discrimination garnered the highest
annual rate of growth (18.6 percent per year). Cases that address dignity in sexrelated discrimination categories represent fully half the total number that grew inconstant-dollar terms.

Is Dignity Dignity: A Convergence Conjecture
These findings give rise to important questions for future researchers to take up and for
adjudicators to take into consideration. In particular, should some grounds for discrimination be
expected to draw higher dignity awards than others? Or, over the long-term and across manydifferent cases, might average awards for injury to dignity in different categories of grounds fordiscrimination, be expected to converge (with long-term growth in all categories simply
following the rate of inflation thereafter)? In short, “is dignity dignity,” regardless of the cause
of injury?
The statistics in Table 2 raise the possibility that some convergence may be emerging, atleast in the case of BCHRT awards. Compare, for example, average awards for injury to dignity
due to discrimination on the grounds of disability and the grounds of sexual harassment, twoquite different grounds for discrimination. At $7,121 and $7,408, respectively, average dignity
awards in these two categories are strikingly similar. These two categories show the highest
volume of cases, together accounting for just under 60 percent of total cases over the period. At$6,249 the average award for injury to dignity in the race, colour, and ancestry category is alsosimilar in magnitude to the two mentioned above. Three categories of discrimination, accountingfor 68 percent of the total number of cases over the 23-year period, received markedly similar
average awards for injury to dignity.
Due to comparatively rapid growth and the presence of outlying values in somecategories of grounds, we compared median as well average awards. The observation of potential
convergence remains. Median awards for disability and sexual harassment over the study period
were $4,724 and $4,382, respectively, and $5,259 for racial discrimination.
While the discussion above lends some support to the convergence conjecture, more
research is needed, encompassing more than just a single human rights tribunal.

17

Table 2
Awards for Injury to Dignity, by Grounds for Award, 1998–2020(Q3): (in constant 2002
dollars)

PRINCIPALGROUNDS FOR
AWARD

*

NUMBER OF
CASES
INVOLVING
INJURY TODIGNITY

PERCENTAGE OF ALL
AWARDS FOR INJURYTO DIGNITYAVERAGEINFLATIONADJUSTED AWARDSFOR INJURY TO
DIGNITY

INFLATIONADJUSTED AVERAGEANNUAL GROWTH IN
AWARDS FOR INJURYTO DIGNITY

Race, Colour,
Ancestry27

8.7%$6,249.00

18.6%

Place of Origin

2

0.6%

$7,337.00*

0%*

Political Belief

2

0.6%

$16,979.00*

12.0%*

Religion

7

2.3%

3,337.00

0%

Marital Status

5

1.6%

$1,346.00

0%

Family Status

10

3.2%

$3,107.00

0%

Mental or Physical
Disability

142

45.8%

$7,121.00

8.3%

Age

8

2.6%

$2.773.00

0%

Sex (gender)

14

4.5%

$5,746.00

9.5%

Sex (orientation)

6

1.9%

$2,725.00

0%

Sex (gender identity
or expression)

2

0.6%

$14,742.00*

9.0*

Sex (genderharassment)

42

13.6%

$7,408.00

6.9%

Sex (pregnancy)

39

12.6%

$4,051.00

0%

Source of income

4

1.3%

$1,431.00

0%

A small number of cases in these categories mean that the average award and estimated rate of growth
should be viewed with caution and regarded as preliminary.

Notes: (1) Zero growth implies that awards kept pace with inflation.
(2) See Annex I for details on sources and methods.

18

3.3.6 Towards a Measurement Framework
Although the valuation of intangibles is commonplace and widely accepted in many areasof public decision-making, it is still early days in the economic analysis profession for thevaluation of dignity.47 Some scholars argue that certain intangible, yet valued attributes of daily
life, society, and nature, including dignity, are essentially non-quantifiable and defy monetization(Bayefsky, 2014). Nonetheless, public agencies, including those of the Canadian federal
government, have been employing the results of economic analysis to value intangibles, such as
the value of green space and the value of human life, for many years as one basis for a range of
public policy and regulatory decisions. Yet dignity is an especially difficult concept from ameasurement perspective. As previously noted in Section 1, legal scholar Jason Varhuas (2016)
finds that the courts have struggled and largely failed to articulate a coherent, rational, andworked out law of injury to human dignity. The same is true in economic analysis: There is nocoherent framework within which to approach the value measurement problem.
3.3.7 A ‘Real-attributes Framework’ for Valuing Dignity
While the idea of dignity itself is an especially abstract notion, particularly from ameasurement perspective, the discriminatory grounds upon which awards are made for injury todignity are less so. It is by taking such grounds as real attributes of dignity as a starting point that
progress on measurement might be made.48
The standard methods for valuing human life—commonly known as the Value of
Statistical Life, or VSL—is one starting point for putting into practice a real attributes
framework for value dignity.49 Currently estimated at about US $10 million, VSL is used in the
CBA of prospective environmental regulations and public infrastructure investments, as well as
in establishing safety-related government policies and programmes.50
Professor Joni Hersch (2018) employs VSL techniques to estimate the value of sexual
harassment. Hersch calculates the risk of sexual harassment by gender, industry, and age, andfinds that US white females, but not non-white females,51 receive a compensating wage
47

For some, monetizing items such as species at risk, and especially human life, is abhorrent. On the other hand,people do assign value to a great many intangibles in life, at least implicitly, by virtue of trade-offs we make ineveryday living, and in public policy decisions. Estimating the monetary value implied in such trade-offs is often
possible, if only imperfectly. A great deal of economic analysis is devoted to such estimation.
48
Section 15(1) of the Canadian Charter of Human Rights and Freedoms provides that “Every individual is equal
before and under the law and has the right to the equal protection and equal benefit of the law without discrimination
and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental
or physical disability.” Evolving jurisprudence with respect to Section 15(1) suggests that the Supreme Court of
Canada is moving towards a real-attributes framework analysis and away from assessing “essential human dignity”(Canada, Department of Justice, 2020).
49
For one example of a study of the measurement of the value of statistical life by occupation and industry, see
Viscusi (2004).
50
The “value of a statistical life” (VSL) represents the estimated monetary value of a reduction in the risk ofaccidental death. The VSL does not change with age or income. In other words, it does not represent the value ofidentified lives but rather that of statistical lives (see Viscusi, 2005). For a useful exposition, see Cass R. Sunstein(2021).
51
The finding of zero compensating wage differential among non-white females could be indicative of underlying
racial discrimination. Hersch does not address this possibility.

19differential for exposure to a higher risk of sexual harassment. Hersch uses this risk premium tocalculate the value of statistical harassment (which Hersch terms VSH, where ‘S’ stands for“statistical”) in a manner analogous to the estimation of the value of statistical life. Hirsch
estimates VSH at US$ 7.6 million, fully three-quarters of the value of a statistical life.
The Hersch estimate is radically higher than any Canadian tribunal or court award forsexual harassment and well above the cap of US$ 300,000 on such awards in the United States at
the federal level. For example, in January 2018, the Human Rights Tribunal of Ontario awarded
a victim of sexual harassment $200,000 in damages for injury to her dignity, feelings, and selfrespect, among the highest of such awards in Canada (A.B. v. Joe Singer Shoes Limited).52 In thiscase, a woman had accused her employer of sexually assaulting her over a period of several
years. It is important to note that Hersch does not use her finding to suggest US$ 7.6 million as
the basis for awards from now on, but rather to recommend the removal of the US$ 300,000 cap
on awards in the US. Similarly, we would not view the conduct of such studies in Canada as thebasis for making specific awards. VSH pertains to a statistical value, not to identified individuals(see footnote 50). Indeed, each human rights case is unique and it is up to tribunals to make suchdecisions.
However, the accumulation of a number of similar studies would provide a baseline ofevidence to which adjudicators could refer for guidance on the general magnitude of awards. In
this way, dignity awards for sexual harassment in British Columbia, which averaged about
C$ 7,400 (in constant 2002 dollars) over the period 1992 through the third quarter of 2020,
would, by reference to the Hersch study, be regarded as too low.53 Beyond that, specific awards
would be a matter for adjudicators to determine. And, to repeat, many more studies of the valueof sexual harassment would be needed in order to form the basis for a baseline of economic
evidence.
In the context of recent awards, at their highest in the hundreds of thousands of dollars,
an estimate in the many millions of dollars might be seen as unrealistic. On the other hand, little
to date is known about the actual human cost and damage to human dignity of sexual
harassment. The finding that the cost could be significantly higher than recent awards is
consistent with the collateral finding that human rights claims have in general been too low (asdiscussed elsewhere in this paper).
Other examples of this approach can be contemplated. With regard to racial
discrimination, labour market data might be employed to estimate wage differentials for
exposure to a higher risk of racial slurs and other reflections of discrimination. From such
estimates, the “value of statistical racial discrimination” might be estimated. The prospects forarriving at such estimates are indicated in the work of some scholars. In the value of life
literature, Viscusi (2003) observes that black workers receive significant compensating wage

52

A.B. v. Joe Singer Shoes Limited, 2018 HRTO 107.
The highest award in British Columbia, of $176,000, was made in January 2021 in the case of Francis v. BC
Ministry of Justice (No. 5), 2021 BCHRT 16.
53

20

differentials for fatality risk, suggesting the possibility of wage differentials for discrimination
risk as well. Only detailed study, however, can reveal whether this is so.54
With the barrier of abstraction having been diminished under the real-attributes
framework, various modes of economic analysis might be possible, including revealed
preference methods like those employed by Hersch as well as contingent valuation and statedpreference. It is for future researchers to explore the options and their effectiveness.
3.3.8 Implementation considerations
There are practical considerations when thinking about how economic valuation of
infringements to dignity in a human rights context might be implemented. The main
consideration is that it should be regarded as a long-term project. Many studies are needed toform the basis of an evidentiary baseline. There are many organizations already in existence tofacilitate and coordinate a wide range of studies across the spectrum of real-attributes of dignity.
One such organization is the Canadian Association of Statutory Human Rights Agencies(CASHRA). Founded in 1972, CASHRA is a network that brings together Canada's territorial,
provincial, and federal human rights agencies. Members share information on their work to help
other agencies protect, promote, and advance human rights across the country.
Such a network could also take on the important role of quality control. In 1993, the US
National Oceanic and Atmospheric Administration (NOAA) convened a panel of economists,chaired by Nobel Prize laureates Kenneth Arrow and Robert Solow, to consider evidence as towhether contingent valuation techniques were capable of providing reliable information.55 Its
main recommendation remains relevant when thinking about the potential role of contingent
valuation approaches to inform the development of the evidentiary baseline for injury to dignity
contemplated here. The NOAA panel concluded that contingent valuation surveys should be
carefully designed and controlled due to the inherent difficulties in eliciting accurate economic
values through survey methods. The panel urged the US government to undertake the task ofcreating a set of reliable reference surveys that can be used to interpret the guidelines and also torecalibrate surveys that do not fully meet the conditions (National Oceanic and Atmospheric
Administration, 1993, p. 64).

54

Critics of the value of life literature have suggested that the failure to converge to a uniform value of life estimate
reflects a fundamental shortcoming of the hedonic wage methodology used to estimate the value of life. However, as
Viscusi (2003) points out, “What these criticisms fail to recognize is that the implicit value of a statistical life is nota universal constant” (p. 239).
55
Under the US Oil Pollution Act of 1990, the US President—acting through the Under Secretary of Commerce for
Oceans and Atmosphere—was required to issue regulations establishing procedures for assessing damages to or
destruction of natural resources resulting from a discharge of oil covered by the Act. These procedures were toensure the recovery of restoration costs as well as the diminution in value of the affected resources and any
reasonable costs of conducting the damage assessment. Contingent valuation techniques were identified as one
possible approach to tackling this challenge, but were controversial and led to the creation of the Contingent
Valuation Panel (National Oceanic and Atmospheric Administration, 1993, p. 6).

21

3.4 Economic analysis and the duty to accommodate up to the point of
undue hardship
Under federal and provincial human rights codes, employers or service providers have aduty to accommodate employees and others through removal discriminatory barriers related toprohibited grounds of discrimination. This duty applies “up to point of undue hardship” for theentity providing the accommodation. Section 15(2) of the Canadian Human Rights Act saysundue hardship exists when “accommodation of the needs of an individual or a class of
individuals affected would impose undue hardship on the person who would have toaccommodate those needs, considering health, safety and cost.” In general, cost represents thedominant factor when tribunals determine whether a respondent’s claim of undue hardship islegitimate. Not accounting for social and economic benefits creates a risk that, contrary to
Canadian Supreme Court admonitions not to under value accommodation in undue hardshipcases, undue hardship claims will succeed even though the accommodation in question would
result in net benefits to society. CBA might help.
To help ensure that respondents do not resort excessively to claims of undue hardship andthereby dilute the desired effects of the duty to accommodate, a high evidentiary bar has been
established for claimants to reach in order to succeed with an undue hardship defence. Many
human rights tribunals and commissions have issued policies and guidelines on how to judge
whether an accommodation would cause undue hardship. In general, they highlight threeconsiderations: cost, outside sources of funding, and health and safety requirements.56 The
Ontario Human Rights Commission 2016 Policy on Ableism and Discrimination based on
Disability cites several Supreme Court of Canada decisions as calling for a stringent requirementfor objective evidence. The policy states that:
The nature of the evidence required to prove undue hardship must be objective, real,
direct and, in the case of cost, quantifiable. The organization responsible foraccommodation must provide facts, figures and scientific data or opinion to support a
claim that the proposed accommodation in fact causes undue hardship. A mere statement,
without supporting evidence, that the cost or risk is “too high” based on speculation orstereotypes will not be sufficient. (OHRC, 2016, p. 49)
Notwithstanding the rigorous evidentiary standards that apply to costs when employers
and service providers make the case for undue hardship, there remains a risk that benefits of
56

The Ontario Human Rights Commission Policy on Ableism and Discrimination based on Disability is unclear on
the role of benefits in determining undue hardship. It states that: “The Supreme Court of Canada has said ‘one must
be wary of putting too low a value on accommodating the disabled. It is all too easy to cite increased cost as a reason
for refusing to accord the disabled equal treatment.’ The cost standard is therefore a high one” (OHRC, 2016, p. 53).
The policy goes on to state that costs will amount to undue hardship if they are quantifiable, shown to be related tothe accommodation, and so substantial that they would alter the essential nature of the enterprise, or so significant
that they would substantially affect its viability. The costs that remain after all benefits, deductions, and other factors
have been considered will determine undue hardship. All projected costs that can be quantified and shown to berelated to the proposed accommodation will be taken into account.

22

accommodation will be lost when such claims succeed. A 2008 decision of the CanadianTransportation Agency (CTA), a quasi-judicial human rights tribunal, is a rare example of theconsideration of social and economic benefits in the context of an undue hardship case.
The CTA considered the claim of people with disabilities who need to pay more fordomestic air services than other passengers when they require additional seating. In summary,
the CTA decided that that Air Canada, Air Canada Jazz, and WestJet could no longer charge
more than one fare to persons with disabilities who:•

are accompanied by an attendant for their personal care or safety in flight, as required by
the carriers’ domestic tariffs; or,•require additional seating for themselves, including those determined to be functionallydisabled by obesity.

Claimants argued that requiring payment for an attendant’s seat violated their right to equal
accommodation. Airlines contended that making seating available to attendants at no cost
constituted an undue financial hardship.
The CTA acknowledged evidence57 that had the airlines’ claim succeeded, at least three
categories of social benefit would be lost:•

Mobility value among those able to travel by air more frequently;•

Insurance value: society’s willingness to pay for seating accommodation in the event of
disability; and,•

Existence value: society’s willingness to pay to ensure the existence of the right of accessto air travel among people with disabilities.

Only the mobility benefits realized by people who would make more airline trips wereinternal to the airline companies involved. But such trips were seen as generating financial losses
due to the free second seat. The other two categories of benefit outlined above would be external
to the airline companies and thus cannot have been expected to be recognized in the firms’
calculations. In its final decision, the CTA rejected the airlines’ undue hardship claim.58
The CTA made its decision in recognition of social benefits, both internal and external, tothe firms involved. But while claimants in this particular case happened to submit evidence thatreferenced such benefits, an accounting for them was not seen by the respondents as a requiredpart of an undue hardship defence. Whatever view one may take on undue hardship defences and57

David Lewis, an author of this paper, testified before the CTA on this topic.
The CTA rejected the undue hardship case of the airlines and estimated that the cost of implementing the oneperson-one-fare policy represents 0.09 percent of Air Canada's annual passenger revenues of $8.2 billion and 0.16
percent of WestJet's equivalent revenues of $1.4 billion (Estate of Eric Norman, Joanne Newbauer, and the Councilof Canadians with Disabilities v Air Canada, WestJet, et. al. Canadian Transportation Agency, Decision No. 6-ATA-2008).
58

23

decisions today, failure to account for benefits in specific circumstances can leave society
without the full improvements justified by the very same regulatory analysis that established therequirements in the first place.
This gives rise to key questions: If benefits accrue to society but not to the employer orservice provider, is there is an economic rationale for government to address what might be seen
as a market failure through some form of government assistance? This rationale for government
assistance would arise in cases where the business in question is too small or is unable for someother legitimate reason to finance the required accommodation, regardless of a positive costbenefit outcome. Should the responsibility fall on government to provide the necessary
assistance?
These questions are posed as a challenge for other researchers. There are many issues that
may be raised. One is that the expense to the public purse could be large. Of course, suchassistance is made in other areas of public policy, such as the approximately $2.6 billion in 2018and 2019 in federal government financial support for private sector R&D through the Scientific
Research and Experimental Development Tax Credit (Finance Canada, 2020). Such financial aid
is justified on the basis of prospective economy-wide benefits that are external to private firms
and therefore would not arise in the absence of government support. Moreover, the cost of suchassistance in the case of accommodation will have been implicitly counted in the CBA used injustifying the accommodation regulations under which complaints are made.59 From thatperspective, government may be said to have committed to such financial support.
The reasonable application of CBA would be of particular value in cases of undue
hardship involving large costs and of regional or national significance. Federal and provincial
human rights tribunals may wish to consider the incorporation of such analysis, along with thenecessary governance requirements (including possible legislative requirements), into theiradministration of undue hardship cases.

4.0 Concluding Observations
This paper has explored whether scope exists for economic analysis to help courts andtribunals resolve challenges in formulating decisions and remedies for human rights claims. The
two areas examined were injury to dignity and the duty to accommodate up to the point of undue
hardship. The common challenge for adjudicators in both areas arises from the quantification of
intangibles including infringement of dignity. The evidence marshalled in this paper suggeststhat established economic analytical techniques can help adjudicators address this challenge.
Economic analysis has a role to play in achieving justice. It can help counter“inconsistency, incoherence and unfairness” through providing, in relation to injury to dignity,
an objective and independent evidentiary baseline. With respect to accommodation, the59

Similar issues and approaches are discussed in the context of the Americans with Disabilities Act in Stein (2003)
and Brown (2011).

24

application of Cost-Benefit Analysis would help ensure against the loss of external benefits. This
paper has suggested the contours for such a role.
In remedial action in cases of injury to dignity, establishing a baseline of quantitativevalues could be a starting point for supporting tribunals in establishing monetary remedies.
Ideally, they would be derived from an independent record of revealed preference and contingent
valuation (such as stated preference) studies. This must be regarded as a longer-term projectrequiring considerable investment in data and analytics. It would also require the support ofhuman rights tribunals, commissions and other stakeholders as well as economic researchers.
Nevertheless, this may prove to be a rich and productive vein for the pursuit of justice.
While it is too early for a definitive conclusion on the question of the prospective effectof economic analysis on the level of awards for injury to dignity, we expect that the result would
be to leave awards higher than they would be otherwise. The convergence conjecture—underwhich, other things being equal, the value of injury to dignity is largely that same regardless ofground of discrimination—could also be rigorously tested with economic analysis.
In accommodation cases, the undue hardship defence currently relies largely on a costaccounting approach. The wider use of CBA, conducted according to guidelines established byhuman rights tribunals or commissions, could help prevent undervaluation of accommodation
recognized by the Supreme Court of Canada to exist. It may also be that governments should
help cover the cost of accommodation in cases where the size of societal benefits fromexternalities, though they may not accrue to the particular organizations, provide reason forgovernment assistance.
Where employers or service providers present an undue hardship defence, we would
expect the routine application of CBA plus the availability of government assistance—insituations where benefits cannot be captured by the service provider—to result in a greater
degree of accommodation. A subtle effect might also result where the CBA itself, bydemonstrating to the service provider that making the accommodation at issue would benefit
their business, would result in fewer undue hardship claims. And in combination, CBA andgovernment assistance might also reduce the number of undue hardship claims that would
otherwise arise.
With respect to investment in analytics and data, there is no national, public, and readily
accessible quantitative database on human rights awards. Yet perhaps not all is lost in light of
new attention during the global pandemic given to transforming to a digitally enabled justicesystem (see commentary by McLachlin (2020)).
Beyond data and analytics, the support of human rights tribunals and other stakeholders is
crucial for introducing economic analysis and concepts into the adjudication of human rights
awards for intangibles. Future research could assess how a sustained effort to introduce greater
consistency, coherence, and fairness through the application of economic analysis and concepts
might be received. Some within the international legal community suggest these attributes could
be better achieved through legal paradigms, namely tort law. However Roach (2019) has
underlined the potential disadvantages of this approach. It may also be that tribunals and courts
25

will wish to retain flexibility to judge cases on their unique and individual merits. They may also
wish to retain their flexibility to award higher amounts for infringement of dignity for somegrounds of discrimination than others.
Finally, there is considerable room and reason for human rights practitioners andeconomists to speak more often with one another. Barriers to such conversations may lie ininstitutional inertia and the tyranny of professional specialization, but also, as suggested by Bray
(2018), different perspectives on the goal of a remedy. It may also be, as suggested by The
Economist (2020), that too often when economists venture into other academic areas, theirarrival often looks more like a clumsy invasion force than a helpful diplomatic mission. We
leave it to others to explore these circumstances. But we hope this paper will help improve thequality and expand the range of topics for conversations across disciplinary and professionalboundaries.

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Quail, S. A. (2016). Damages for injury to dignity in human rights cases.
https://aqrlaw.ca/blog/2016/1/27/damages-for-injury-to-dignity-in-human-rights-cases
R. v. Kapp, [2008] 2 S.C.R. 483.
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%20Kapp&autocompletePos=1
Ranalli, O., & Ryder, B. (2017). Undercompensating for discrimination: An empirical study of general
damages awards issued by the Human Rights Tribunal of Ontario, 2000–2015, Journal of Law
and Equality (13), 91–140. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2958516
Rawls, J. B. (1999). A theory of justice (3rd ed.). Belknap.
Roach, K. (2019). The disappointing remedy? Damages as a remedy for violations of human rights.
University of Toronto Law Journal, 69, 33–63.
https://utpjournals.press/doi/10.3138/utlj.69.s1.002
Sahdra, S. (2018). Review of Ontario human rights damages in 2018: New high watermarks.
https://www.mccarthy.ca/en/insights/blogs/canadian-employer-advisor/review-ontario-humanrights-damages-2018-new-high-watermarks
Sandford v. Koop, 2005 HRTO 53.
https://www.canlii.org/en/on/onhrt/doc/2005/2005hrto53/2005hrto53.html?resultIndex=1
Sen, A. (2009). The idea of justice. Belknap.
Sinclair, J. G. (2004). Chairperson’s message. Canadian Human Rights Tribunal Performance Report forthe period ending March 31, 2004. https://publications.gc.ca/collections/collection_2012/scttbs/BT31-4-44-2004-eng.pdf
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190. https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1194&context=dlj
Sunstein, C. R. (2007). Cost-Benefit Analysis without analyzing costs or benefits: Reasonableaccommodation, balancing, and stigmatic harms. University of Chicago Law and Economics
Olin Working Paper No. 325. https://chicagounbound.uchicago.edu/law_and_economics/141/30

Sunstein, C. R. (2021). What price is right? New York Review of Books.
https://www.nybooks.com/articles/2021/06/10/what-price-is-right-human-life/
Track, L. (2019). Who’s who in BC’s human rights landscape? https://bchrc.net/whos-who-in-bcshuman-rights-landscape/Treasury Board of Canada. (2007). Interim Canadian Cost-Benefit Analysis guide: Regulatory proposals.
https://www.tbs-sct.gc.ca/rtrap-parfa/analys/analys-eng.pdf
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https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1342&context=yjlf

32

ANNEX I

ANNEX I: British Columbia Human Rights Tribunal Award Decisions on Injury toDignity

Descriptive Statistics
There is no national and public database of descriptive statistics maintained on humanrights awards made by Canadian tribunals for injury to dignity or, for that matter,accommodation. Individual tribunals may well maintain their own in-house databases on awards
made over time and organized by ground, but if so, they are not available to the public throughtribunal websites. (The BC Human Rights Tribunal (BCHRT) website offers a small number ofdescriptive time-series statistics on monetary awards for injury to dignity.)
Fortunately the BC Human Rights Clinic (BCHRC) 60 maintains a public textual report,
issued quarterly, on all injury to dignity decisions made by the BC Human Rights Tribunal since1998 (BC Human Rights Clinic, 2021). This is the only such running tally of injury to dignity
awards made by any Canadian human rights tribunal that is in the public domain and readily
accessible.
The BCHRC quarterly report is cross-referenced to cases recorded in the CanLII
database.61 It is organized according to both the sections of the BC Human Rights Code and also
by discriminatory ground. Depending on the section of the BC Code, protected grounds include
race, colour, ancestry, place of origin, political belief, religion, marital status, family status,
physical or mental disability, sex, sexual orientation, gender identity or expression, age, or
because that person or member has been convicted of a criminal or summary conviction offence.
The BC Clinic report draws on the textual decisions of the BC Tribunal decisions to identify
some more specific grounds, such as pregnancy and sexual harassment.
Table A1 (below) draws on the BCHRC report for 1998 through to the third quarter of2020 to provide descriptive statistics. There are many technical considerations and choices to bemade in translating the textual information from decisions into the form of descriptive statistics.
Examples of the choices made for the purposes of this paper are:60

The BC Human Rights Clinic is operated by the Community Legal Assistance Society and funded by the BC
Ministry of Justice. The Clinic provides free legal help for people who have made a human rights complaint to the
BC Human Rights Tribunal. It is not part of the Tribunal. It is an independent organization. The Clinic has lawyers
and legal advocates who help people with their human rights complaints. People who have filed a human rights
complaint with the Tribunal and had their complaint accepted can apply for free legal services here. The Clinic also
provides free and low-cost educational workshops and training (Track, 2019).
61
To the knowledge of the authors, the BCHRC report is not formally endorsed by the BC Human Rights Tribunal
or the BC Human Rights Commission.

33

ANNEX I•

Adjustment to awards made on judicial review. Only the original BCHRT awards areincluded.

•Tribunal decisions that leave injury to dignity awards up to the parties to decide.
These cases have been excluded.

•

Awards to multiple parties. In some cases, different levels of monetary awards forinfringement of dignity are given to multiple parties to a complaint. Only the highest
awards made are included.

•

Awards made on multiple human rights grounds. Many cases involve complaints of
discrimination on multiple grounds. The BCHRC report identifies a primary ground foreach case based on the BCHRT decision text. The report’s primary ground identification
is used in the descriptive statistics below. However, there are a few cases where a reviewof the tribunal decisions by the authors resulted in a different identification of primaryground than that reported in the BCHRC report.

•

Those injured do not seek a tribunal monetary award for infringement of dignity, or
they reject the award offered. These cases are not included in the descriptive statistics.

•

Retaliation complaints. The BCHRT hears cases known as “retaliation complaints” andformally described as “Protection” under section 43 of in the BC Human Rights Code in
the following terms: “A person must not evict, discharge, suspend, expel, intimidate,coerce, impose any pecuniary or other penalty on, deny a right or benefit to or otherwise
discriminate against a person because that person complains or is named in a complaint,
might complain or be named in a complaint, gives evidence, might give evidence orotherwise assists or might assist in a complaint or other proceeding under this Code”(Human Rights Code [RSBC 1996] Chapter 210). The twenty BCHRT decisions between
1998 and the third quarter of 2020 under this section are not included in the descriptive
statistics reported in this paper. A number of the retaliation cases form part of othercomplaints on other primary grounds.

As a result of these and many other choices made by the authors, the descriptive statistics
portrayed in Table A1 are not the same as those that may be maintained by the BC Human
Rights Clinic, the BC Human Rights Commission, or the BC Human Rights Tribunal. For
example, there are fewer decisions reflected in the authors’ database (310) than the higher
number reported by the BC Human Rights Clinic. Nonetheless, we believe the descriptive
statistics present a reasonable picture of trends in dignity awards by ground over time. 62
62

The authors of this report have neither consulted with nor sought endorsement from the BC Human Rights Clinic,
the BC Human Rights Tribunal, or the BC Human Rights Commission in assembling the database used in various
parts of this paper. Moreover, the authors acknowledge that while best efforts have been made to make reasoned
technical choices and assumptions so as to assemble an accurate and functional database, additional refinement
could result in further adjustments.

34

ANNEX I

Table A1
British Columbia Human Rights Tribunal Average Awards for Dignity by Primary
Grounds for Discrimination: 1998-3Q 2020 (constant dollars 2002 = 100)
Primary GroundNumber of
DignityAward
Decisionsin Dataset

Percentage of all
Dignity Award
DecisionsAverage Injury
to Dignity Award(constant 2002
dollars)

Race, Colour, Ancestry*

27

8.7%

$6,246

Place of Origin

2

0.6%

$7,337

Political Belief

2

0.6%

$16,979

Religion7

2.3%$3,337

Marital Status

5

1.6%

$1,346

Family Status

10

3.2%

$3,107

Physical or Mental Disability

142

45.8%

$7,121

Age

8

2.6%

$2,773Sex (gender)

14

4.5%

$5,746Sex (orientation)

6

1.9%

$2,725Sex (gender identity or expression)

2

0.6%

$14,742Sex (gender - harassment)**

42

13.5%

$7,408Sex (pregnancy)**

39

12.6%

$4,051

Lawful Source of income

4
310

1.3%
100.0%$1,431$6,171 ***See source and notes on following page.

35

ANNEX I
Source: Lewis and Currie (2021) based on BC Human Rights Clinic 3Q 2020 report. These statistics have not beenreviewed or endorsed by the BC Human Rights Clinic, the BC Human Rights Tribunal, or the BC Human
Rights Commission.
Notes*

Within this table the separate grounds of race, colour, and ancestry are combined into a single category.

**Sexual harassment and pregnancy are not identified as a prescribed ground within the BC Human Rights
Code, but are identified as a discriminatory ground within BC Human Rights Tribunal decisions.

***

The average dignity awards from 1998 through 3Q of 2020 as calculated on the basis of all individualawards (i.e., not the average of each year's average award)

Table A1 shows that, measured by number of decisions and primary grounds of
discrimination, the largest number of decisions concern physical or mental disability (46percent), followed by sexual harassment (14 percent), pregnancy (13 percent), and race, colour
and ancestry (9 percent).
The highest average award for infringement to dignity in constant 2002 dollars occurredon the primary grounds of political belief and gender identity or expression. However, these two
primary grounds represented only two decisions for each ground. Average awards on othergrounds representing a larger number of decisions were highest with respect to sexual
harassment, place of origin, religion, and physical or mental disability.
Although not recorded within Table A1, the database of dignity awards developed by theauthors suggests that 78 percent of all dignity awards were less than $8,000. Forty-five percent
of all dignity awards fell in the range of $0 to $4,000, with a further 33 percent of awards fallingin the range of $4,000 to $8,000. These statistics are largely consistent with award ranges
published by the BC Human Rights Tribunal on its website.63
Figure A1 (below) charts the average of all dignity awards by the BC Human Rights
Tribunal between 1998 and the third quarter of 2020 in constant dollar terms. While there has
been considerable variability over time with averages affected by various outlier cases, theoverall trend line shows average award values climbing over the period in real terms. This result
stands in contrast to that reported by Ranalli and Ryder (2017) for general damage awards madethe Human Rights Tribunal of Ontario between 2000 and 2015. They report that, after adjustingfor inflation, the range of general damages awards decreased over the study period.

The BC Tribunal’s published award range statistics cover a shorter period (2009 through 2019) and do not appear
to have been adjusted for inflation. It is not known what other technical choices the Tribunal statistics may reflect.
Nonetheless, the BC Tribunal reports that 76 percent of all orders for dignity infringements were less than $10,000
over the 2009 through 2019 period.
63

36

ANNEX I

Figure A1
BC Human Right Tribunal Average Dignity Awards by Year 1998 - 3Q 2020 (constantdollars 2002=100)

Source: Lewis and Currie (2021) based on BC Human Rights Clinic 3Q 2020 report. The underlying data for thisgraph has not been reviewed or endorsed by the BC Human Rights Clinic, the BC Human Rights Tribunal,or the BC Human Rights Commission.

Table A1 and Figure A1 suggest that the BC Human Rights Tribunal is not“undervaluing” dignity when it comes to keeping up with inflation. But these same descriptive
statistics do not provide a basis for answering a more fundamental question: Do dignity award
amounts reflect the judgements of adjudicators, or do they incorporate the value of infringements
to dignity complainants, or perhaps some combination of each?

37

ANNEX I

Empirical Analysis of Growth in Dignity Awards by the BC Human Rights Tribunal
Average constant-dollar awards for injury to dignity shown in Figure A1 grew over theperiod 1998–2020(Q3) by an estimated six percent a year.64 Here we seek to disaggregate growthby the grounds for such awards. However, because of the small number of observations incertain categories of grounds and apparent structural breaks in awards in some categories, there
is no one method that yields unambiguously “correct” growth rates by grounds for award. The
method we explored was to formulate a model of the form:
Yijt = k + aj Dj + bj(Dj Tt) + e

1.

Where:
Yijt denotes the constant-dollar dignity award for case i; grounds j; in year t;
for cases i = 1-300; award categories j = 1-14; and years t = 1-23;
Dj denotes a dummy variable = 1 for principal grounds j;
0 otherwise;
Tt denotes a time trend variable for years 1998 to 2020[Q3];k, aj, and bj denote the coefficients to be estimated; ande denotes an error term of mean zero and constant variance.
The grounds “Source of income” was selected as the reference case. This means thatmeasured effects (coefficients) are relative to this category. However, experimentation and visualinspection of the data indicate that the impact of source of income on awards is itself zero (inconstant dollars), which means that the measured effects may be interpreted as overall growth indignity awards for each category.
The term k + aj Dj represents different intercepts according to the level of awards
associated with each category of grounds. The term aj measures whether grounds Dj shifts theoverall constant term k (as determined by the statistical significance aj).
The term (Dj Tt), by interacting the dummy variable and time variable, yields coefficientsbj in the form of different rates of change over time for each category of grounds.
We excluded cases where the complainant did not seek a dignity award or where theaward remained to be determined at the time the case data were available. We also excluded case
categories for which only fewer than six cases are available.
Using OLS regression, we estimated two forms of the model, as follows:

64

Note that awards in Figure A1 are averaged in each year whereas what follows in the Annex disaggregates thedata into each award by year. The 6 percent estimate is based on regressing the natural logarithm of average awards
in time t on a trend variable.

38

ANNEX I

Yijt = k+ aj Dj + bj(Dj Tt) + e

2.

andlnYijt = k + aj Dj + bj(Dj Tt) + e

3.

In the log-linear form, the coefficients may be interpreted as annual percentage growth
rates.
Although the two models produce consistent results in terms of statistically significant
coefficients and the ranking or growth by grounds for awards, the linear model produces a higher
R-square and superior F-statistics (Table A2). Each model, however, accounts for only a verysmall share of the overall variance in awards. This is because of zero real growth in a number ofaward categories.
Table A3 reports estimated growth based on each of the models, one in dollars per year,
the other in percentage per year.
Although, as indicated earlier, there is no single correct way to ascertain growth indignity awards, sensitivity analysis indicates that the results reported here are broadly robust toalternative methods and assumptions.

39

ANNEX I

Table A2: Dignity Awards Regressed on Principal Grounds for Award Interacted withTime 1998-2020(Q3)Model 1:
LinearModel 2:
Log-Linear

Coefficient*

Coefficient*4844.341(1.97)

7.86(31.79) **PARAMETERkRace, Colour, Ancestryab-6359.83(-1.69) ***717.41(3.15)-2.09(2.15)
0.186(3.152)-4305.56(-.63)
257.7(0.47)-0.63(-0.35)0.64(0.46)-2091.8(-0.38)78.6(0.16)-0.38(-0.27)
0.039(0.31)-3723.19(-1.23)492.3(4.28)-0.82(-1.10)0.083(2.784)-3066.51(-.48)
154.62(0.26)-.0431(-.263)0.043(.283)-3002.02(0.61)
401.87(1.01)-.387(-.304)0.078(.756)-5820.21(-1.85)881.93(5.01)-0.140(-.172)0.085(1.85)***

Religionab

Family StatusabDisability
a
b

Age
a
b

Genderab

Sexual Harassmentab

40

ANNEX I

Table A2: Dignity Awards Regressed on Principal Grounds for Award Interacted withTime 1998-2020(Q3)abSource of income
OBSERVATIONS
R-squared
F-3541.4(-1.04)263.30(1.29)-0.370(-0.419)0.0641(1.215)

Reference Case

Reference Case

285
0.162
4.433**

285
0.03
1.70***t-ratios in parenthesis: ** Significant at >95% confidence : *** Significant at >90% confidence

Table A3
Estimated Growth in Inflation-Adjusted Awards for Injury to Dignity, by Grounds forAward, 1998 - 2020(Q3)
PRINCIPAL GROUNDS FOR AWARD

MODEL 1
Linear(Annual Growth
In Constant Dollars Per
Year)

MODEL 2
Log-Linear(Annual Percentage
Growth)717.41

18.6

Religion (7 cases)

00Family Status (10 cases)

00

Disability (142 cases)

492.3

8.3

Age (8 cases)

00

Gender (14 cases)00

501.006.9

00Reference Case

Reference Case

Race, Colour, Ancestry (27 cases)

Sexual Harassment (42 cases)

Pregnancy (39 cases)

Source of Income (4 cases)

41

ANNEX IBest Estimates of Growth in Categories with Fewer than Six Cases
In omitting cases with fewer than six cases, the analysis above does not estimate growth indignity awards for growth involving discrimination due to marital status, for which there were
five cases during the analysis period; cases involving discrimination due to sexual orientation,
for which there were six cases; and cases involving discrimination due to place of origin andpolitical belief, for which there were two cases in each of these two categories.
In order to obtain a best estimate of growth in these four areas, we used an alternative form of themodel, as follows:
Yijt = k + bj(Dj Tt) + e

4.

andlnYijt = k + bj(Dj Tt) + e

5.

The model is second-best and suboptimal.65 It is used in the main text to report estimated growthin only those categories with fewer than six cases over the period of analysis. The findings,
shown in Tables A4 and A5, indicate zero constant-dollar growth in two of the four areas of
discrimination with six or fewer cases. There was an estimated 12 percent growth for politicalbelief and 9.5 percent for gender, categories each with only two cases.

65

This form of the model was used here in part to accommodate a software limitation.

42

ANNEX I

Table A4
Dignity Awards Regressed on Principal Grounds for Award Interacted with Time 19982020(Q3): Results Using Alternative Model

VARIABLE(Dummy Variable x Time Trend Variable)
Intercept
Race, Colour, Ancestry
Place of Origin
Political Belief
Religion
Marital Status
Family Status
Mental or Physical Disability
Age
Sex (gender)Sex (orientation)
Sex (gender identity or expression)
Sex (gender-harassment)
Sex (pregnancy)
Source of Income
OBSERVATIONS
R-squaredF*

t-ratios in parenthesis** Significant at >95% confidence*** Significant at >90% confidence

43

Model 1:
LinearModel 2:
Log-Linear

Coefficient*1001.639(1.13)
537.08(4.50) **388.55(1.60)
780.23(3.46) **221.39(1.01)
65.33(0.26)
235.35(1.03)
500.50(6.84) **225.59(0.87)
473.96(2.65)**
174.31(0.64)
650.30(3.02)**
730.71(6.34) **286.59(2.56) **Reference Case300
0.22
5.77**

Coefficient*7.28(31.79) **0.078(2.52) **0.078(1.21)
0.120(2.0) **
0.061
(1.09)
0.015(0.23)
0.058(0.98)
0.067(3.52) **0.057(0.87)
0.095(2.08) **0.044(0.62)
0.090(1.62)***
0.119(3.99) **0.081(2.80) **Reference Case300
0.08
1.83**

ANNEX I

Table A5
Estimated Growth in Inflation-Adjusted Awards for Injury to Dignity, by Grounds forAward, 1998 - 2020(Q3)
PRINCIPAL GROUNDS FOR AWARD

MODEL 1
Linear(Annual Growth
In Constant Dollars Per
Year)

MODEL 2
Log-Linear(Annual Percentage
Growth)Race, Colour, Ancestry

537.00

8.1

Place of Origin

NA

NA

Political Belief

NANA

Religion

00Marital Status

00

Family Status00

501.006.9

00474.009.4

Sex (orientation)00

Sex (gender identity or expression)NA

NA

Sex (gender-harassment)

731.0012.6

Sex (pregnancy)

287.00

8.4

Source of Income

Reference Case

Reference Case

Mental or Physical Disability

Age

Sex (gender)

Notes: (1) Zero growth implies that awards kept pace with inflation.
(2) NA denotes insufficient information

44

ANNEX II

ANNEX II: International Scan of Legislative Limits on Undue Financial Burden

Examples of Limits on Accommodation Requirements

Country

Laws/Rule Regarding
Access and Prohibiting
Discrimination on Basis of
Disability

UnitedNations

Convention on the Rights of
Persons with Disabilities,
2006

Accommodation required as long as it does “not impos[e] adisproportionate or undue burden, . . .” [Convention on the
Rights of Persons with Disabilities, Article 2, 2006]

Australia

The Australian Disability
Discrimination Act,1992

Accommodation required unless would impose an “unjustifiablehardship” [Disability Discrimination Act, 1992, 21 B exception].

CanadaThe Canadian Charter ofRights and Freedoms, 1982;
the Canada Transportation
Act, 1996; and Accessible
Canada Act, 2019

Service providers must make provision for accessible transport up
the point of “undue hardship” [Canada Transportation Act andCouncil of Canadians with Disabilities v. Via Rail Canada Inc.,
2007]

Human Rights Act, 1993

Accommodation required, including for access to “places,
vehicles, and facilities,” except “when it would not be reasonable
to require the provision of such special services or facilities”[Section 43]

European Accessibility Act,
2019

Accessibility requirements should only apply to the extent thatthey do not impose a disproportionate burden on the economic
operator concerned, or to the extent that they do not require asignificant change in the products and services, which would
result in their fundamental alteration in the light of this Directive.
[Directive (EU) 2019/882, Article 64)]

Disability Discrimination
Act,1995 (repealed in 2010
except in Northern Ireland);and The Equality Act, 2010

Where someone meets the definition of a disabled person in the
Equality Act (2010) employers are required to make reasonableadjustments to any elements of the job which place a disabled
person at a substantial disadvantage compared to non-disabled
people. Employers are only required to make adjustments that arereasonable. Factors such as the cost and practicability of making
an adjustment and the resources available to the employer may be
relevant in deciding what is reasonable [S 20 and regulations].
Entities must to make “reasonable accommodation,” “unless suchcovered entity can demonstrate that the accommodation would
impose an undue hardship . . . “or “would result in an undue
burden, i.e., significant difficulty or expense.” [Americans with
Disabilities Act, 1990, S 12111 and S 36.104]

New
ZealandEuropean
Union

UnitedKingdom

UnitedStatesAmericans with Disabilities
Act, 1990

Source: Daphne Federing and David Lewis (2017). Updated by the authors 2021.

45