Student D v. Selkirk College, 2025 BCHRT 178
Date Issued: July 30, 2025
File: CS-005064
Indexed as: Student D v. Selkirk College, 2025 BCHRT 178
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Student D
COMPLAINANT
AND:
Selkirk College
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(d)(ii)
Tribunal Member: Edward Takayanagi
Counsel for the Complainant: Sandra L. Kovacs
Counsel for the Respondent: Jessica Fairbairn
I INTRODUCTION
[1] In this decision, I explain why I dismiss Student D’s compliant under s. 27(1)(d)(ii) of the Human Rights Code, on the basis that it would not further the purposes of the Code to proceed with a hearing in circumstances where a respondent made a reasonable settlement offer.
[2] Student D was a student in the Bachelor of Nursing program at Selkirk College. She alleges the College discriminated against her in the area of services on the grounds of mental and physical disability contrary to s.8 of the Code. She says the College failed to reasonably accommodate her disabilities which negatively affected her academic performance, and she ultimately withdrew from the program.
[3] The College made a with prejudice settlement offer to Student D to resolve the complaint. The College advised Student D that if she rejected the offer, they would file an application to dismiss the complaint under s. 27(1)(d)(ii) of the Code.
[4] Student D rejected the offer, and the College now applies to dismiss the complaint. Student D opposes the application and disputes that the offer is reasonable. Specifically, she argues that the monetary amount for lost wages and injury to dignity, feelings, and self-respect is too low.
[5] For the following reasons, I grant the application and dismiss the complaint. I find the settlement offer was reasonable and it would not further the purposes of the Code to proceed.
[6] To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.
II BACKGROUND
[7] Student D has achondroplasia, generalized anxiety disorder, and auditory processing disorder. In September 2017, she started a four-year Bachelor of Nursing program at the College. Student D says that between April 28, 2020, and July 14, 2020, during the practicum portion of her program, she made requests for accommodation to her instructors and school administrators who failed to provide her the requested accommodations. Student D withdrew from her program on September 21, 2020.
[8] Student D sought to reenroll in the nursing program in the summer of 2021, and discussed with the college about available accommodations. She ultimately did not reenroll. Since withdrawing from the nursing program Student D has been working as a care aide and special education assistant.
[9] On February 3, 2025, the College made a with prejudice offer to settle the complaint on the following terms:
a. The amount of $20,000 for injury to dignity, feelings, and self-respect.
b. The amount of $24,394.30 for lost wages, less statutory deductions, representing a delay to potential graduation from the Bachelor of Nursing program by one year, less her average annual earnings as a care aide and educational assistant, and less a 30% contingency to account for the potential non-graduation from the program.
c. The College will provide Student D with a letter of regret acknowledging the distress she experienced in the program.
d. The College will provide a revised transcript replacing any “fail”, “no credit granted” or “partial credit granted” notations with a “withdrawal” notation. The College will also provide a transfer letter endorsing Student D as a candidate for any nursing programs in other post-secondary institutions.
e. The College will commit to review its Accessibility Services for Students program and make any updates it deems necessary.
[10] The offer remains open for acceptance notwithstanding the filing of the application to dismiss the complaint. The offer will expire two weeks following the Tribunal’s decision on the application to dismiss.
[11] Student D rejected the settlement offer.
III DECISION
[12] The College applies to dismiss the complaint under s. 27(1)(d)(ii) because it says, it would not further the purposes of the Code to proceed where it has made a reasonable offer to settle the complaint.
[13] There are two pre-requisites for the Tribunal to consider dismissing a complaint based on a reasonable settlement offer. First, the settlement offer must be made “with prejudice” because the Tribunal cannot rely on information about settlement discussions that is inadmissible based on privilege: at Dar Santos v. University of British Columbia, 2003 BCHRT 73 para. 64; Carter v. Travelex Canada and Travelex UK (No. 3), 2007 BCHRT 275 at para. 25. Second, the offer must remain open for the complainant’s acceptance regardless of the outcome of the application to dismiss: Issa v. Loblaw, 2009 BCHRT 264at para. 35. There is no dispute that both prerequisites are met in this case.
[14] Next, I must determine whether it furthers the purposes of the Code to proceed. To do this the Tribunal takes account of two considerations. First, it determines whether the offer is reasonable. Generally, it will not further the purposes of the Code to proceed where the respondent has made a reasonable, with prejudice, settlement offer: Dar Santos at para. 59. Second, even if the offer is reasonable, the Tribunal may consider whether there are considerations that weigh in favour of proceeding with the complaint, considering the purposes set out in s. 3 of the Code.
[15] I begin my analysis by determining whether the offer is reasonable.
A. Is the settlement offer reasonable?
[16] In assessing whether an offer is reasonable, the Tribunal assumes that the complainant will prove their allegations. At the same time, the settlement offer does not have to mirror exactly what the Tribunal would order and does not need to contain an admission of liability: Carter at para. 30. Rather, the offer must provide reasonable compensation and other remedies the Tribunal would likely order if the matter were to proceed to a hearing and be successful: Heitner v. BC Provincial Renal Agency and others (No. 3), 2020 BCHRT 134 at para. 48.
[17] Student D does not dispute that the offer fully addresses the allegations in the complaint and the available remedies. The sole issue the parties disagree about is whether the monetary amount of the settlement offer falls within the range of what the Tribunal may award at a hearing. Therefore, I will consider each head of monetary award in turn.
1. Wage Loss
[18] Section 37(2)(d)(ii) of the Code gives the Tribunal discretion to award compensation to a successful complainant for all, or part, of any wages or salary lost because of a contravention. The purpose of such an award is to restore a complainant, to the extent possible, to the place they would have been in had the discrimination not occurred: Gichuru v. The Law Society of British Columbia (No. 9), 2011 BCHRT 185 at para. 300.
[19] The College offers $24,394.30 for lost wages. The College says that Student D withdrew from the program in September 2020 and considered reenrolling in July of 2021. They say that if she had chosen to reenroll, she would have returned to the program at the start of the academic year in September 2021. The College says the offer for lost wages represents a one-year delay from when Student D would have graduated, less Student D’s average annual earnings as a care aide and educational assistant, and less a 30% contingency to account for the potential non-graduation from the program.
[20] Student D does not dispute the College’s calculations but says that her wage loss should encompass more than a one-year delay. She says that absent the discrimination she would have graduated from her program and began working full-time as a registered nurse in July 2022. She says the total amount she would have earned as a registered nurse from July 2022 to present is $301,400 and the difference from her actual earnings to date is $84,400.
[21] Student D also argues that a reasonable offer should incorporate her future loss of earnings. She says the impact of the discrimination has made her reluctant to return to a nursing program, either at the College or any other institution, and she has lost the opportunity to become a registered nurse. She says she is now considering retraining in an alternate career as an X-ray technician. She explains that the amount she is seeking is the difference between the expected lifetime earning to the age of 70 of a registered nurse and an X-ray technician of $933,600. She disagrees with the College’s contingency deduction of 30% but says that even if such a deduction is applied, her total future loss of income is approximately $700,000.
[22] I find the College’s offer of $24,394.30 for wage loss to be within the reasonable range of what the Tribunal might award for the following reasons.
[23] There must be a causal connection between the discrimination and a compensable financial loss: Gichuru at para. 279. In cases where the complainant was not an employee of the respondent but is alleging the discrimination negatively affected their ability to earn wages due to a delay in graduation from a professional program the Tribunal looks at a number of factors including the likely date of graduation, the likelihood of obtaining a job in that profession, and the reasonable earnings in that profession: Hale v. University of British Columbia Okanagan (No.5), 2023 BCHRT 121.
[24] The evidence before me is that Student D withdrew from her program on September 21, 2020. She inquired about reenrolling in July 2021 but ultimately chose not to do so. There is no evidence that there were barriers to Student D’s return to the program. On the contrary, the evidence is that the College was actively engaging in the accommodation process, inquiring about the specific accommodations Student D would require upon returning to the program and preparing to issue a letter of accommodation when Student D chose not to reenroll. I appreciate that Student D felt “averse to returning to a nursing program” and had anxiety about the possibility of being criticized if she returned to school. There is nothing wrong with choosing not to pursue nursing either with the College or another institution, however, Student D cannot look to the College to make up the future shortfall in earnings arising from her choice absent discriminatory barriers. In my view, a reasonable award for wage loss would end as of July 2021 when Student D could have returned to the nursing program but chose not to. The evidence supports that Student D was delayed in completing her nursing program by one year due to the discrimination.
[25] Second, a future loss of earnings is an extraordinary remedy issued by the Tribunal only in the clearest of cases: Francis v. BC Ministry of Justice (No. 5), 2021 BCHRT 16 at para. 124-125. I am not persuaded that there is sufficient evidence to support such an extraordinary remedy here. In Francis there were multiple medical assessments conducted over a period of several years supporting that the complainant was permanently impaired and unable to work in any capacity. Here, Student D relies on a medical-legal report from psychiatrist, Dr. Shaohua Lu based on one examination on March 4, 2024. Dr. Lu is guarded in his conclusions about the possibility of Student D resuming her nursing program. Dr. Lu says that Student D is “unlikely to be able to tolerate a return to nursing education” and that “her career trajectory remains highly uncertain.” Dr. Lu also says that if Student D returns to a nursing program, she would likely require understanding from those involved in her education and part time study with increased support and accommodation. I do not find Dr. Lu’s conclusions to be clear evidence that Student D will never be able to complete her nursing program and pursue a career in nursing. Instead, I find Dr. Lu to be uncertain about Student D’s recovery and ability to return to the College’s nursing program. In my view it is speculative to say Student D will never be able to return to a nursing program in light of Dr. Lu’s uncertainty about her prognosis. I am not persuaded that the circumstance of this case is the kind of clearest of cases that attracts an award for future loss of earnings.
[26] Next, I turn to whether a contingency deduction of 30% is reasonable. The College has identified a number of uncertainties that the Tribunal would likely consider and that can impact the amount of a wage loss award. The undisputed evidence is that the College’s nursing program has a non-graduation rate of 30%. The College also argues that there are inherent market uncertainties about whether Student D would have found employment if she entered the work force. In all the circumstances, I find it likely that the Tribunal would engage in some discounting of Student D’s wage loss claim based on these uncertainties, particularly the non-graduation rate.
[27] I accept that that there is a 30% non-graduation rate from the College’s program which means that Student D’s graduation from the College, absent discrimination, was not guaranteed. I also note that Student D was only in the second year of a four-year program and had more specialized education and training ahead of her. I further accept that there are other uncertainties about whether Student D would have been successful in finding a job in nursing, and that there is a range of salaries for a registered nurse. Taking into consideration all of these uncertainties, I find a contingency deduction of 30% is within the range of what the Tribunal may deduct.
[28] For these reasons, I find the amount of $24,394.30 to be within the reasonable range of what the Tribunal might award for lost wages.
2. Injury to dignity, feelings, and self-respect
[29] The Tribunal has the discretion to award compensation for injury to dignity: Code, s. 37(2)(d)(iii). The purpose of these awards is compensatory, not punitive. The amount of compensation depends on the specific facts and circumstances in a given case and relevant factors: Gichuru v. Law Society of British Columbia (No. 9), 2011 BCHRT 185, aff’d in 2014 BCCA 396 at para. 260. At the same time, for the purposes of consistency and fairness, it is often helpful to consider the range of awards made in similar cases. In making an injury to dignity award the Tribunal often considers several factors including the nature of the discrimination; the complainant’s vulnerability; and the effect on the complainant: Oger v. Whatcott (No. 7), 2019 BCHRT 58 at para. 225.
[30] The College offers $20,000 for injury to dignity and argues that this amount is within the reasonable range of what the Tribunal might order assuming Student D proves her case. Student D says the offer is not reasonable and a reasonable range of compensation for injury to dignity is $75,000 to $100,000.
[31] For the following reasons, I am persuaded that $20,000 falls within the reasonable range of what the Tribunal might award.
[32] I begin with the nature of the discrimination. Any discrimination is serious; however, the egregiousness of the discriminatory conduct varies depending on the specific facts of the case: Cyncora v. Axton Inc., 2022 BCHRT 36 at para. 114. Student D’s complaint is that during her second year of a four-year nursing degree program the College failed to accommodate her disability which negatively affected her academic performance. Student D ultimately chose to withdraw from the program. Therefore, the nature of the discrimination is about specific accommodations that the College did not provide to Student D.
[33] Next, I consider Student D’s vulnerability or the social context of the discrimination. Student D has physical and mental disabilities affecting her ability to fully participate in the nursing program. The Tribunal has recognized that a student is in a vulnerable position as they rely upon a school to provide education and training: Kelly v. University of British Columbia (No. 4), 2013 BCHRT 302 at para. 101. This vulnerability was compounded by Student D’s disabilities and her dependence on the College to accommodate her disabilities in order to pursue her studies.
[34] Finally, I consider the effect of the discrimination on Student D. Student D says the discrimination aggravated her preexisting anxiety disorder and has negatively impacted her mental health, coping skills, and self-confidence. Most notably she says that because of the discrimination she withdrew from the College’s nursing program and is averse to returning to a program either at the College or in any other institution. She says she feels anxiety and uncertainty about her future career prospects.
[35] The parties have cited a number of cases in support of their positions. None of the cases cited by the parties mirror the exact circumstances of this case. However, I have reviewed and considered all of them in reaching my conclusion about the range of reasonable injury to dignity awards that Student D might receive if she is successful in a hearing.
[36] Student D refers me to Kelly ($75,000), and Dunkley v. UBC and another, 2015 BCHRT 100 ($35,000) and suggests a reasonable range of an award is $75,000 to $100,000.
[37] I find the circumstances in Kelly distinguishable. The complainant in Kelly was terminated from a residency program. The Tribunal found that the circumstances of the discrimination engaged both ss. 8 and s. 13 of the Code. Employment discrimination cases where a complainant has lost their job often attracts injury to dignity awards at the higher ends of the spectrum: Mema v. City of Nanaimo (No. 2), 2023 BCHRT 91 at para. 367. Here, Student D was not in an employment relationship with the College. On this basis, Kelly is of limited assistance.
[38] Additionally, the evidence in Kelly was that the complainant suffered deep humiliation and embarrassment for a period of six years after being terminated from the residency program. The Tribunal found that the complainant suffered multiple health-related problems including depression, trouble sleeping, and thoughts of self-harm. Here, the evidence of Dr. Lu is that in 2024, three years after withdrawing from the nursing program, Student D exhibits some symptoms of her preexisting anxiety disorder but demonstrates resilience, motivation, and stabilization of her mood and anxiety. Accordingly, the impact on Student D resulting from the discrimination cannot be said to be as severe as that in Kelly.
[39] Dunkley is similarly distinguishable because it also concerns a medical residency where the relationship between the parties was one of employment.
[40] While they do not mirror the present circumstances exactly, I find the cases the College relies on to be more relevant to my analysis. The cases cited are complaints of discrimination in post-secondary education and the awards for injury to dignity in these cases is between $10,000 and $17,500: Fernandes v. City University of Seattle in Canada and another (No. 2), 2020 BCHRT 116 ($17,500); Laberge v. Martier School of Hair, Design & Aesthetics and another, (No.2) 2010 BCHRT 302 ($10,000). The College acknowledges that the Tribunal’s trend for injury to dignity awards is trending upwards: Benton v. Richmond Plastics, 2020 BCHRT 82 at para. 78 and their offer of $20,000 surpasses the cases it relies upon.
[41] While any discrimination is serious, I cannot accept that the evidence before me supports that the nature of the discrimination in this case is as severe as the cases Student D cites or would attract the quantum of award she says is reasonable. I acknowledge that Student D suffered some negative impact from the discrimination. However, the evidence before me, including the report from Dr. Lu suggests that the discrimination caused a temporary worsening of anxiety disorder symptoms which Student D was able to manage and continued to balance work, study, and personal demands. I am not persuaded that the Tribunal is likely to award Student D the amount awarded in Kelly of $75,000, or greater.
[42] In the circumstances of this complaint, I would estimate a reasonable range of injury to dignity award would be between $15,000 and $35,000 if the complaint succeeded at a hearing. The settlement offer is at the lower end of this particular range but it is still reasonable.
[43] In conclusion, looking at the entirety of the offer, I am satisfied that it fully addresses the allegations and available remedies and offers monetary compensation that is within the reasonable range of what the Tribunal might order. I find the offer reasonable.
[44] Next, I consider whether there are factors that weigh in favour of proceeding with the complaint, based on the purposes set out in s.3 of the Code.
B. Will it serve the purposes of the Code to proceed despite the reasonable settlement offer?
[45] The assessment of whether proceeding with a complaint will further the purposes of the Code, involves more than an assessment of an individual complaint. It encompasses broader public policy issues including the efficiency and responsiveness of the human rights system, and the expense and time involved in processing a complaint to a hearing: Dar Santos at para. 59. In general, it does not further the purposes of the Code to proceed to a hearing where the respondent has made a reasonable settlement offer: Salanguit v. Parq Vancouver and another, 2024 BCHRT 119 at para. 47.
[46] Here, I find there are no factors that favour proceeding with the complaint in light of the reasonable settlement offer. Student D has not argued that there is any factor, other than the monetary amount of the settlement offer, that warrants her complaint proceeding.
[47] The Tribunal routinely hears and decides cases that concern disability accommodation in educational settings, and I am not persuaded that the circumstances of the present case engage broader public policy issues that warrant proceeding in the face of a reasonable settlement offer. Further, considerable resources of the parties and the Tribunal would be required for a hearing of this matter. The Tribunal encourages parties to resolve their disputes in good faith on a voluntary basis. The College’s settlement offer contains terms that the Tribunal cannot order at a hearing, such as issuing a letter of regret, providing a revised transcript, and the transfer letter. The College’s offer also includes terms to ensure the discrimination does not occur again by reviewing its accessibility policies and training its faculty. Under the circumstances, I find that allowing this complaint to proceed would not further the purposes of the Code.
IV CONCLUSION
[48] I grant the application and dismiss the complaint under s. 27(1)(d)(ii) of the Code.
[49] As set out in the College’s settlement offer, the settlement offer will expire in two weeks following the date of this decision.
Edward Takayanagi
Tribunal Member