| Issue | Workers' Comp | Human Rights |
|---|---|---|
| Income Loss | % of net income which varies by jurisdication | 100% possible claim to the date of the hearing |
| non-taxable | past income taxable Future lost income non-taxable |
|
| extent of income claim | Dependent on medical evidence. Limiting factors in Human Rights law such as imminent closing of the business or brief residual period of employment contract are not relevant. | "make whole" concept many factors may stop lost income claim such as business closing or fixed term employment contract or likely termination for cause |
| discounts to lost income | none | other extraneous factors may impact lost income claim as a % discount |
| LTD insurance | usually policy will be reduced by WC benefits | Usually LTD will not offset lost income claim and is non-taxable, where the employee "pays" for the insurance benefits. Consideration may be direct or indirect. Note that benefits provided by and paid directly by the employer, are a taxable benefit to the employee, which adds weight to the "paid by employee" argument. |
| age limit | at age 63 or after, cap at 2 years | none: based on likely retirement date |
| emotional distress test | Must meet stipulated gradation of mental distress by medical opinion. Some jurisdictions, such as Ontario, New Brunswick and B.C., require DSM diagnosis. | none required but medical evidence is preferred |
| Example as in Nova Scotia 1. Traumatic psychological injury from sudden frightening event and diagnosis 2. Gradual onset of psychological injury due to, for example, repeated bullying. Need medical diagnosis. Normal work stressors are not included, such as discipline, time deadlines etc. | ||
| return to work | Weak. Generally it is qualified by number of employees, length of service, time period absent from active employment. | discretionary |
| human rights violation | not required | mandatory |
| employment definition | conventional | very liberal |
| n/a to termination | Generally WC is not available where the emotional suffering is due to decisions relating to employment such as termination, discipline, or a change in working duties. | not applicable |
| emotional distress damages | none but employee may file HR complaint | yes. If the employee is unionized, the arbitrator may award both emotional damages for a human rights violation and aggravated damages for unfair conduct, which is also to compensate for emotional harm, and possibly, although rarely, punitive damages. |
| solvency of employer | not applicable | vital |