Human Rights: Damages: Lost Income: Mitigation: Mitigation Expenses

Common Law Rule

As a general rule, it would appear that the complainant remains under an obligation to take reasonable steps to seek out comparable employment, as is the case in common law wrongful dismissal actions. The onus of proof will be upon the employer. ¹

There are some inroads suggested in this principle as discussed below which reflect the considerable discretion given to the tribunal and that the human rights process is not required to march lock step with common law principles. ²

The common law has defined the onus on the employer as twofold. The employer must show a breach of the obligation and secondly, must then introduce affirmative evidence to show that had the employee taken reasonable steps to seek employment, success likely would have followed.³ This has been the general direction of the human rights panel. ⁴

Principled Discretion

This being said, the path has not been straightforward. The issue of “principled discretion” and the interpretation of the B.C. statute allowed the tribunal to order “all, or a part” of the lost wages ⁵ without regard to Red Deer and Evans. ⁶

In human rights cases, different considerations in assessing the mitigation obligation may apply.⁷

For example, a tribunal should take into consideration the after-effects of exposure to a poisoned work environment in looking at the duty to mitigate. ⁸ Where this plea is made, appropriate supportive medical evidence should be provided. ⁹ This onus is upon the applicant, that is, to explain why there has been a failure to mitigate by proper evidence.¹⁰

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.

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. ¹¹ as to whether this obligation has been fulfilled and concluded that it was not bound by traditional common law concepts.

To 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.,BCSC.

Where there has been a finding of a failure to mitigate, the Tribunal may assess what a fair time period to find other employment would have been and use this conclusion for the assessment of the income loss.¹²

Occasionally arguments may arise by which the employer may assert that the applicant had an obligation to return to work based on an offer made of comparable employment following dismissal or an alleged dismissal.

How far down the field this analysis pushes the ball is highly debatable. At the end of the day, it would appear there has been no dramatic revision to the traditional view that mitigation is the order of the day.

A fair synthesis may be that the Tribunal will look to mitigation as the usual requirement but has considerable latitude in its discretion.

Impact of Evans

Many have said that the leading case on the mitigation obligation in an employment context is the 2008 Supreme Court of Canada decision in Evans v Teamsters Local 180. In reality it added only one new wrinkle. The fundamental principles of mitigation were in place years before this decision and repeated once again.

It did deal with the new concept of considering the obligation of a dismissed employee to return to work at the request of the employer following a termination. This was really the only new principle and in dealing with this.

The Court determined that in certain circumstances, it will be necessary for the dismissed employee to return to work. This being said, it remains the employer’s onus to show a failure to mitigate in this circumstance.

The analysis is contextual and multi-factored. The critical issue is that the employee not be obliged to mitigate by working in “an atmosphere of hostility, embarrassment or humiliation”, a standard which is to be reviewed objectively. This being stated, the non-tangible elements including “work atmosphere, stigma and loss of dignity” in addition to the tangible elements are to be included in the evaluation.

This issue has been reviewed in two important human rights cases to date.

In one case ¹³ in which the applicant had been subjected to sexual harassment and gender violations, the employer, a school board had agreed to re-employ the applicant on terms which the complainant found unacceptable.

The applicant was penalized for her refusal to be re-employed, a decision which was reversed on first review. Mr. Justice Leask, later set aside by the Court of Appeal, 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.

Upon further review by the Court of Appeal, this court determined that the Tribunal was not mandated to apply the common law concept of mitigation in assessing the income loss and allowed the tribunal decision to stand.

The Court of Appeal concluded that the Tribunal’s decision, whether or not it chose to apply Evans or not, was a discretionary one and could not be challenged on judicial review. In addition the appellate court found that the chambers judge applied the wrong test of correctness and should have used the test of reasonableness and afforded the Tribunal deference.

Long before the Evans decision, the Ontario Board of Inquiry came to the same conclusion. A maintenance mechanic due to his refusal to work on the Sabbath and was ordered to be reinstated. The employer had offered to him alternative employment as a “springer” or “packer” following the dispute. The “springer” position was seen to be overly physically demanding, but the “packer” position was a job the employee could have performed but chose not to, as it was a Grade 5 level position, compared to that of the mechanic which was a Grade 17 and paid 42% less than the more senior position. The packer position however was accompanied by production bonuses which may have allowed the complainant an income which was approximate to his prior income level or even exceeded it, as was found.

The Board found that the employee could have worked in this position without waiving his right under the Code to seek the remedy in question. The Board concluded that he ought to have accepted this position until the hearing took place or until such time that he found other employment. The claim for lost income was denied. ¹⁴

Mitigation Expenses

Generally speaking, reasonably incurred mitigation expenses related to a job search¹⁵will be awarded. In this instance, the claim for tuition fees was denied as it was determined that this claim was not reasonably foreseeable. This expenses was incurred due to the lack of success in the job search, designed to enhance her employability.

Additional travel expenses for new employment were allowed in a 2102 Ontario tribunal case. ¹⁶ The applicant was allowed recovery of mileage expenses due to the drive from her newly found employment which was an incremental distance of 25 kilometres from her past employer. The sum was allowed of $7,776 for the 27 month period of the income loss.

Moving expenses were allowed in a further Ontario tribunal decision ¹⁷ with some restraint. Not all claimed expenses were allowed. The cost of relocating to Ottawa was awarded, including moving and packing servics, hotel and meal costs while seeking permanent housing, connection fees for utilities and transportation costs to and from Ottawa to Toronto for a three month period.

The claims which were not allowed were the sums attributable to the family’s decision not to relocate to Ottawa, a decision which the tribunal hypothecated were due “no doubt many factors which contributed to that decision, including his wife’s position with CEFCUT in Toronto”. Such claims included rent, utilities, the purchase of a car and other miscellaneous expenses in Ottawa. The claims for transportation after the three month period were also denied, as by that date the move to Ottawa was complete.

A similar, but more modest, sum was allowed for moving expenses of $666 in a 2005 tribunal decision. ¹⁸

The Ontario tribunal considered a similar claim for such expenses in an unusual context in its 2000 decision. ¹⁹ The applicant had been ordered to be instated into the employ of the respondent. An order was made to reimburse the applicant for “his reasonable moving expenses”, and to advance a sum for the first and last month’s rent and to assist him in leasing a vehicle. In a prior order ²⁰ it had been ordered that the agency pay the applicant $5,000 for relocation counselling.

A claim was made by the successful applicant in a B.C. Tribunal case for expenses incurred in the start-up of a small teaching business, a sum which was relevant to his mitigation attempt. The claim was denied on the theory that there were other teaching opportunities which had accessed. ²¹ The sums claimed of $1,170 for tuition fees for a phlebotomy training program and for a first aid course were allowed without dispute from the respondent.

Mitigation Expenses at Common Law

The issue of the recovery of mitigation expenses at common law is reviewed here. Many common law issues may be raised in human rights jurisprudence. These include:

1. Should the expense claim be limited to expenses incurred in the time period of the income loss? This does appear to the direction to date in human rights cases.

2. Where a claim for moving expenses has been made, must the applicant have succeeded in finding new employment?

3. Should such an expense of relocation costs where allowed, be capped at the advantage given to the employer to the extent of new income earned?

4. Should real estate fees be included in this determination?

5. May there be a claim for expenses incurred in setting up a new business? ²²

These issues remain to be determined.

Arbitral Jurisprudence

From a broad perspective, arbitration cases generally have allowed recovery of reasonable mitigation expenses. A fair example is a decision from Alberta in 2016. ²³  The claim was for tuition fees expenses relating to professional training. This instance was met with the submission that such costs did not lead to success in finding new employment. This plea was dismissed and the claim for relevant job search expenses was allowed in the sum of $3,260. ²⁴

Summary of Mitigation Cases

A summary in chart form of successful arguments made by the employer on this issue may be reviewed here.

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1. Payette v Alarm Guard Services (Dimovski)
2. The Ontario Court of Appeal in Piazza v Airport Taxi did confirm 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
3. Red Deer College v. Michaels ; Evans v Teamsters
4. Matheson v Presbytery of Prince Edward Island
5. The 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.
6. This was similar to the views of the FCA in Chopra v Canada
7. The Alberta Court of Appeal in Walsh v Mobil Oil 
8. Holness v South Alder Farms Ltd (BCHRT).
9. Payette v Alarm Guard Services (Dimovksi)
10. Turner v 507638 Ontario Ltd (Renton) Heintz v. Christian Horizons,265);  Pchelkina v. Tomsons
11. Dube v CTS Career College citing Almeida v. Chubb Fire Security Division (Ont. Bd. Inq.)
12. Adams v Knoll North America
13. J.J. v Coquitlam School Board
14. Rand 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 
15. in DeSousa v Gauthier (DeGuire)
16. Xu v Ottawa Hospital (Hewat
17. Abouchar v Metropolitan Toronto School Board
18. Sandford v Koop (Gottheil)
19. Moffat v Kinark (Laird)
20. which is not reported on Canlii
21. Kelly v UBC
22. It is expected that the Kelly decision is unlikely to be the last word on this issue.
23. United Nurses of Alberta v Alberta Health Services
24. The expenses included:The claim is for a total of $3,260.79, and includes expenditures on the Advanced Cardiac Life Support (ACLS) course; International Trauma Life Support (ITLS) course; Advanced First Aid; Fundamentals of Disability Management; Petroleum Safety Training and H₂S Staying Alive courses; Cardio-Pulmonary Resuscitation (CPR); Occupational Health and Safety Certificate course (University of Alberta Faculty of Extension); and the Transport of Dangerous Goods/Workplace Hazardous Materials Information System (TDG-WHMIS) course.  The claim also includes fees for an online course for serving alcoholic beverages and a Fleet Drivers Safety Training Course, and hotel charges for one course taken in Red Deer.