436Such was the decision in Morgan v Herman Miller (Debane) in which the reprisal claim resulted in a lost income claim of 14 months and the substantive claim was dismissed Back to book Page ‣
437In Piazza v Airport Taxicab, (1985), (Ont. Bd. Inq.), var’d 24 O.A.C. 8 (Div. Ct.), rev’d 60 D.L.R. (4th) 759 (C.A.) , the Court of Appeal upheld the award of the Board of Inquiry (Zemans) award of 11 weeks’ lost income after 10 weeks of employment in the sum of $2,750. This sum represented the complainant’s period of unemployment following her termination. The Divisional Court had incorrectly reduced the damages for lost wages to $750.Back to book Page ‣
4381998 in OHRC v Impact Interiors, again in a reversal of the Divisional Court decision Back to book Page ‣
439In Impact Interiors, the complainant, Cindy Petersen, had been employed for two days, at which time she quit due to the sexual harassing conduct of the employer. The Board of Inquiry (Anand) ordered a lost wage claim of $17,272, which represented the difference between what she would have earned in her former job and what she actually earned from her last date of active employment to the date of the hearing, a time period of two years and eighteen weeks.The second complainant, Shirley Hom, was a student who had been employed for five days. She was awarded lost compensation from the date of last active employment on June 10 through to the date of her return to school on September 10, 1990.Back to book Page ‣
440 The Divisional Court revisited this issue of the claim for lost income in its 2005 decision in Smith v Ontario and again concluded that the principle of the damage assessment for lost income is one intended to be restorative in nature, one which does not involve wrongful dismissal considerations or for that matter any restriction as one which should be “reasonable”, the latter words being interpretative from this writer; Whitehead v. Servodyne Canada Ltd. (1987), 9 C.H.R.R. D/3897.Back to book Page ‣
441Canadian Human Rights Tribunal (Schulman) in Rinn and Russell v Keewatin Air Limited in June of 1988 Back to book Page ‣
442  The injured party should be put back into the position he or she would have enjoyed had the wrong not occurred, to the extent that money is capable of doing so, subject to the injured party’s obligation to take reasonable steps to mitigate his or her losses.”Back to book Page ‣
443Canadian Human Rights Tribunal (Schulman) in Rinn and Russell v Keewatin Air Limited Back to book Page ‣
444The Alberta Court of Appeal in Walsh v Mobil; The Federal Court of Appeal in Chopra v Canada (Attorney General) 2007 FCA 268 at paras. 28 to 37, application for leave to the Supreme Court of Canada was dismissed.Back to book Page ‣
445The Prince Edward Island Court of Appeal in Ayangma v Eastern School Board also agreed with the analysis in Chopra and noted that the Federal Court of Appeal in that instance defined the loss of income claim as one not tied to foreseeability whether or not reinstatement was sought as a remedy. To buttress the argument of an income loss to the date of hearing, reinstatement should always be sought.Back to book Page ‣
447The Federal Court of Appeal stated in Chopra that the Tribunal was not legally bound to apply the mitigation although it concluded that the Tribunal may nonetheless do so in the exercise of its discretion. In Tahmourpour v RCMP the Tribunal noted that in Chopra mitigation was a concept which the Tribunal was not mandated by law to apply, yet could apply in the application of its discretion. The Tribunal chose to do so and found that Mr. Tahmourpour had defaulted in this obligation. Back to book Page ‣
448The Alberta Court of Appeal in Walsh v Mobil Back to book Page ‣
449 As found by the first level decision maker and upheld in the Court of Appeal.Back to book Page ‣
450 Lane v AGDA (Mullan). The decision went to Divisional Court, but not on thisBack to book Page ‣
451in accordance with Prince v Eaton principles as was applied by the late Mr. Justice Echlin in Brito v Canac and confirmed in the Court of Appeal..Back to book Page ‣
452The issue of double-dipping and Sylvester is reviewed subsequently. Back to book Page ‣
453In the immediate case, Ms. Heintz obtained employment for a short time period after her last day of work and then enrolled in a training and placement program and attended a full-time information technology program for one year, from July 2001 to July 12, 2002.
She testified that she was required to change her career path due to the extreme emotional anxiety she suffered due to the conduct of the respondent. A full lost income claim was awarded for the time period as noted, such being 21.5 months, less any sums received.
The case was amended on appeal with respect to the public interest remedy.
Back to book Page ‣
454The complainant in DeSousa v Gauthier (DeGuire), a 2002 decision, had claimed an income loss for a period of 56 weeks following her termination. She had been employed with the corporation for 8 months. The time period for the income loss was said to be “a reasonably foreseeable period”, in this case set at 15 weeks. Back to book Page ‣
455In Baylis-Flannery v DeWilde (Hendriks), a claim was allowed for lost income and also awarded an increase in the rate of pay which had been withheld as a reprisal. Although the words expressed in the decision speak of restitution as the principle of assessing the lost income claim, the period allowed was 4 weeks, apparently influenced by the length of employment of four months. It was noted that the date of termination was March 17, 2000 and that alternate employment was attained “sometime in the summer of 2000”.Back to book Page ‣
456Reflective of that which, it is submitted, the modern correct approach to a lost income claim is the decision of the Tribunal in the July 2013 case of Chittle v 1056263 Ontario (Keene); Norrenda v Primary Response (Keene) Back to book Page ‣
457In general terms, similarly a loss of income could be caused by reprisal or poisoned work environment. This is not meant to be exhaustive. Back to book Page ‣
459This subject is discussed below. Ironically the law is that the tribunal has no authority to award statutory or common law claims.Back to book Page ‣
460Alberta Human Rights Tribunal in the March 2012 decision in Schulz v Leth bridge (McFetridge) Back to book Page ‣
461Canadian Human Rights Tribunal decision in Milano v TripleK (Mactavish) Back to book Page ‣
462Ontario Tribunal in Clennon v Toronto East General (Hart); An unsuccessful reconsideration motion followed.Back to book Page ‣
463CHRT Tahmourpour v RCMP. Back to book Page ‣
464This decision was reviewed and set aside by the Federal Court, which decision for the most part was, in turn set aside by the Federal Court of Appeal and a new hearing ordered. The main issue for the new hearing was the determination of the income loss beyond the first period of 2 years and 12 weeks.Back to book Page ‣
465This was the evidence used for the second hearing. Back to book Page ‣
466Due to an administrative error, the employee did not make submissions to the second tribunal hearing on this issue. A subsequent judicial review application was unsuccessful. On the substantive issue of the wage loss beyond the grace period, Near J. concluded that there was no error in making the failure to mitigate finding.A further appeal of this decision was made on the procedural issue which failed. Back to book Page ‣
468Kooner-Rilc of v BNA Smart Payment B.C. HRT; Hughes v 1308581 Ontario Ltd. (business closed) , Milano v TripleK (staff reductions) Schulz v Lethbridge (medical ability to return to work) and Clennon v Toronto East General (termination for performance issues due to take place). See also Morris v. British Columbia Railway Co. (2003), 46 C.H.R.R. D/162, 2003 BCHRT 14. Back to book Page ‣
470 McLean v. DY 4 Systems, 2010HRTO1107 (CanLII), 2010 HRTO 1107.Back to book Page ‣
471It is to be noted that, as discussed subsequently, the award was largely academic as the WSIB sums offset the wage loss Back to book Page ‣
472Mitigation is discussed elsewhere. Back to book Page ‣
473Hughes v 1308581 Ontario Ltd. (business closed) , Milano v TripleK (staff reductions) Schulz v Leth bridge (medical ability to return to work) and Clennon v Toronto East General(termination due to take place). See also Morris v. British Columbia Railway Co. (2003), 46 C.H.R.R. D/162, 2003 BCHRT 14. Back to book Page ‣
474Fair v Hamilton-Wentworth, upheld by the Divisional Court, although the lost income award was not specifically challenged. (leave to appeal granted May 1, 2015) Back to book Page ‣
475Ontario Human Rights Commission and Karumanchiri et al v Liquor Control Board of Ontario 8 CHRR D/4076 (Baum) in which the complainant Karumanchiri was instated to the promoted position of Chief Chemist. This decision was affirmed on review by the Divisional Court 9 CHRR D/4868, although the award for lost income differential was again not a subject raised by the employer on the judicial review.Back to book Page ‣
476The same conclusion was reached by the Canadian Human Rights Tribunal in Singh v Statistics Canada (Mactavish) in which the applicant was instated to a more senior position due to a finding of adverse treatment due to age and awarded the income differential from August 1989 to the date of instatement in November of 1998. Back to book Page ‣
477This was also the conclusion of the Board of Inquiry in McKinnon v Correctional Services #3 (Hubbard) in which the Board ordered that the complainant and his spouse each be instated to the rank of OM16 and receive appropriate salary arrears from the date of the initially unsuccessful application for such employment from March of 1989 to the date of the award in April of 1998.Back to book Page ‣
478Treane v City of Windsor (Sengupta) ordered a lost income claim from September 2008 to the final day of the hearing in December of 2010.Back to book Page ‣
479The Canadian Human Rights Tribunal in McAvinn v Strait Bridge Crossing (Deschamps) made an order requiring that the first available position of a bridge patroller be awarded to the complainant in its decision of November 2001. The commencement date of the lost income award was May 31, 1997.The award stated that failing such an offer of alternate employment, the total lost income was to be set at a 10 year period. The contingent prospective loss was hence set for a time period of six years and seven months. Back to book Page ‣
481It would be prudent to advance a claim for reinstatement to support a claim for a prospective income loss. Back to book Page ‣
482McKee v. Hayes-Dana Inc. (1992), 17 C.H.R.R. D/79. A second decision followed which has no impact on this issue at (19 CHRR D/511).Back to book Page ‣
483PilonvCornwall (Muir) Back to book Page ‣
484 The Ontario Board of Inquiry made a similar contingent order for a prospective income loss in the May 1976 decision of Rajput v Algoma UniversityCollege (Tarnopolsky). The complainant, a Sociology professor, had been given a terminal contract by the university for the academic year running from July 1, 1974 to June 30, 1975. A subsequent vacancy was advertised for a similar position in February of 1975, to which Dr. Rajput applied. It was found that he was not successful in this application due to racial discrimination. Reinstatement was not ordered due to the impact of such an order on innocent third parties. An order of compensation was made for the next academic year was made as a prospective loss of income instead, dependent upon the attempts made by the complainant to seek alternative income in this time period internally and externally. Back to book Page ‣
485A similar conclusion was reached in the unjust dismissal case under the Canada Labour Code in Mathur v Bank of Nova Scotia (Armstrong). The adjudicator determined that reinstatement was not an appropriate remedy and hence awarded compensation through to Mathur’s retirement age, albeit on terms requiring Mathur to report on his mitigation efforts during the prospective period from the date of the award of May 2, 2002 through to the date of retirement of July 22, 2003. Back to book Page ‣
486City of Calgary vs Canadian Union of Public Employees,Local38. There remained the issue as to when MP might in the future be able to return to work. The minimum time period from the date of the decision was accepted by the panel as being two years into the future. The maximum period was nine years, this also being the date when she would be eligible to receive retirement benefits.The panel concluded a fair date to use for a future income loss would be based on a likely return to work date of July 1, 2018. The date of the decision was December 1, 2013. The future income loss was hence established to be $512,149, which was reduced by a 10% risk factor and a discounted rate for a present payment of a future income stream of 2.25%.Back to book Page ‣
487Greater Toronto Airports Authority v PSCA Local 0004 on a judicial review application of the arbitral decision of Owen Shime, Q.C. The court agreed that the future loss of 2 years was correct as the arbitrator considered mitigation and future contingencies in the shaping of the award. Back to book Page ‣
489City of Calgary vs Canadian Union of Public Employees,Local38. The case was not a pure arbitral remedy as the parties had agreed that all remedies, arbitral, common law and human rights were to be considered by the arbitrator. Back to book Page ‣
490The Ontario Divisional Court upheld such a two year prospective income loss in Greater Toronto Airports Authority v PSCA Local 0004 on a judicial review application of the arbitral decision of Owen Shime, Q.C. Back to book Page ‣
491This was chosen as it was the first eligible date of retirement. Back to book Page ‣
4922007 decision in Seguin v Great Blue Heron Charity Casino (Scott) in which the Tribunal concluded that there was a fifty percent chance that the applicant,The Divisional Court set aside the remedy decision, not upon its merits ; Dantu v. North Vancouver District Fire Department (1986), 8 C.H.R.R. D/3649; McKinnon v. Ontario (Ministry of Correctional Services), [2007] O.H.R.T.D. No. 5; April 2013 decision of Rocha v Pardons and Waivers Canada (Keene), also set at 50%. Back to book Page ‣
493DeSouza v 1469328 Ontario Inc. (Joachim). Neither approach was concluded as correct in the Desouza decision itself. Back to book Page ‣
494See also Davis v City of Toronto (Liang). A finding was made that the applicant was not treated fairly due to his disability but no lost income claim was allowed as it was accepted that he would not have been hired in any event.Back to book Page ‣
495Chopra at CHRT. He was then awarded one-third of the salary differential. This was for the interim position. It then determined that he would have met the same test as a permanent hire, yet discounted the award by two-thirds. The time period of the loss was 6 years. Back to book Page ‣
496The Federal Court of Appeal took issue with the conclusion in law that a “mere but serious possibility” of attaining the new position was the correct test to apply and noted that the genesis of this proposition, which was stated to originate from Morgan v Canada, [1992] 2 FC 401, 85 DLR (4th) 473 was not reliable as it came without a clear majority opinion on this issue. Back to book Page ‣
497Tahmourpour v RCMP. One of the remedies then granted was the right to enter the next training program. The tribunal noted the adverse comments as made by the FCA in Chopra but felt bound to apply this test. Back to book Page ‣
499Also see Parks & MacIntryre v Christian Horizons No. 2, 16 CHRR D/171 (Mendes) in which the Board, referring to Gohm v Domtar and Torres v Royalty Kitchenware, Back to book Page
500see Kooner-Rilc of v BNA Smart Payment (Basina) The contract was clearly in violation of the statute, which was not argued. The decision also, parenthetically, stated that “but-for” the pregnancy, the complainant may have resigned her employment, which is an unusual finding. Back to book Page
501Alberta Human Rights Tribunal in Cowling v The Queen Back to book Page
503Walkinshaw v Complex Services (Slotnick); The employee’s request for reconsideration was dismissed without reference to the merits of the initial decision Back to book Page
504Powers of Tribunal S. 39.The Tribunal has the jurisdiction to exercise the powers conferred on it by or under this Act and to determine all questions of fact or law that arise in any application before it. 2006, c. 30, s. 5. Back to book Page
507In the Ontario Court of Appeal decision in McNamara v Alexander Centre Industries, at trial and on appeal,Back to book Page
508Sylvester v BC. There is also law allowing short term disability sums to be doubly recovered, as in in Zorn-Smith v Bank of Montreal. There is some debate as to whether Sylvester has been substantively eroded by Ontario Court of Appeal in Egan v Alcatel. The employer’s application for leave to appeal to the Supreme Court was dismissed. Egan appeared very much to contradict Sylvester. Egan was not argued in Altman v Steve’s Music which applied Sylvester and allowed double recovery. It was also allowed by the Ontario Court of Appeal in Deyonge v Liberty Mutual, which was pre-Egan. Back to book Page
509This was the decision made in The Yukon Human Rights Board of Adjudication in its December 2008 decision of Hayes v Yukon College 67 CHRR D/408 (Evans, Tkachuk and Riseborough) Back to book Page
510Backs v City of Ottawa (Muir), a decision made in February of 2012. Back to book Page
511Walsh v Mobil Oil; .The argument as noted above were not presented in this cases but it is nonetheless evident that the lost income claim arose due to an inability of the applicants to work due to medical issues caused by the employer’s wrongful conduct. Back to book Page
512In the Ontario Court of Appeal decision in McNamara v Alexander Centre Industries, at trial and on appeal, the plaintiff, on termination, was medically disabled. He had received the sum of $163,000 in disability benefits from August of 1995 to January 15, 1997. McNamara had testified at trial that had the employer not offered the benefits it did when he was first hired, he would have requested a higher salary. He recovered his severance claim without offset of the disability; To the same effect is the Court of Appeal decision in Sills v Children’s Aid Society of Belleville, which was released concurrently with McNamara. Back to book Page
513March 2012 decision of the Alberta Human Rights Commission in Schulz v Lethbridge (McFetridge);Kerr v Boehringer Ingelheim (Parrack). The principle of potential double recovery was allowed in concept, but denied on the facts as it was determined the fact that the employer paid the disability insurance premiums was conclusive against the award of doubling up. This decision was the subject of an unsuccessful judicial review application and subsequent appeal on issues which were not related to the issues of lost income claim summarized above. Back to book Page
514The Ontario Court of Appeal in Piazza v Airport Taxi (1989) 69 OR (2d) 281 confirmed the obligation of mitigation in a human rights case, as referenced in MacTavish v PEI, a decision of the Supreme Court of Prince Edward Island Back to book Page
516(Red Deer College v. Michaels, 1975 CanLII 15 (SCC), [1976] 2 S.C.R. 324); Evans v Teamsters Back to book Page
518The B.C. Supreme Court decision in McIntosh v Metro Aluminum Products sat on a judicial review and upheld a Human Rights Tribunal decision which did not apply the onus as in Red Deer and Evans. Back to book Page
519This was similar to the views of the FCA in Chopra v Canada Back to book Page
520The Alberta Court of Appeal in Walsh v Mobil Oil stated that Back to book Page
521Holness v South Alder Farms Ltd (1999) CHRR Doc. 99-019 (BCHRT). Back to book Page
523Turner v 507638 Ontario Ltd (Renton) Heintz v. Christian Horizons, 2008HRTO22(CanLII), 2008 HRTO 22 (CanLII) at para. 265); Pchelkina v. Tomsons, 2007HRTO42(CanLII), 2007 HRTO 42 (CanLII) at para. 26. Back to book Page
524 The duty to mitigate is to act reasonably. It is clear that the court will consider the individual circumstances of the complainant and should she be troubled by physical or emotional ailments making it difficult for her to seek employment, this should not be weighed against her, as was confirmed by the Alberta Court of Appeal in Walsh v Mobil; Dube v CTS Career College, a Tribunal decision in August of 2010 did consider the impact of the emotional trauma suffered by the complainant. It saw this as a factor in assessing the reasonableness of the complainant’s job search efforts; Almeida v. Chubb Fire Security Division (1984), 5 C.H.R.R. D/2104 (Ont. Bd. Inq.) Back to book Page
525To the same end is the conclusion reached by the British Columbia the Court of Appeal discussed subsequently on the application of the Evans concept in J.J. v Coquitlam School Board; McIntosh v. Metro Aluminum Products Ltd., 2012BCSC 345(CanLII), 2012 BCSC 345 at para. 51 and 52 Back to book Page
528Mr.Justice Leask, set aside by the Court of Appeal which stated: The tribunal had failed to assess the critical factor − at the forefront of the inquiry into what is reasonable − must be whether or not the employee would be returning to an atmosphere of hostility, embarrassment, or humiliation. The court concluded that “The question here is whether these conditions are designed to mitigate some of the humiliation and embarrassment which would otherwise result from returning to work.”
The tribunal ought to have looked to the question of “whether reasonable person would have returned to a workplace based on the objective working conditions; specifically, the presence or absence of hostile, humiliating or embarrassing work. The Tribunal, in focusing only on whether J.J. herself was at one time willing to return, conducted a subjective analysis. This was an error.”
Back to book Page
529Rand and Canadian Union of Industrial Employees v Sealy Eastern Limited, Upholstery Division (Cumming) 3 CHRR D/ 938. This may have been a peculiarity of the unionized workplace but it does open an employer argument when it voluntarily may offer such a concession. Back to book Page
532Abouchar v Metropolitan Toronto School Board (1999) 35 CHRR D/ 175 (Laird) , and similarly in Moffatt v Kinark Child and Family Services (Laird) and also in Sandford v Koop (Gottheil) Back to book Page