Lost Income Damages in Human Rights Cases: The $965,338 Award in Volpi

The Alberta Human Rights Tribunal’s remedy decision in Volpi v Lifemark Health Corp., 2026 AHRC 71, is a significant decision on lost income damages in employment-related human rights cases.

The Tribunal awarded the complainant $965,338.14 for lost wages, plus prejudgment interest. The decision is important because of the Tribunal’s approach to income loss. It confirms that wage loss in a human rights case is not confined to a common law reasonable notice period. The task is broader: to place the complainant, as far as money can do so, in the position he would have occupied but for the discriminatory loss of employment.

The competing positions on lost income

The gap between the parties’ positions was dramatic.

The complainant sought $4,575,200 for lost income, including both past and future losses. His position was that, had the employment relationship continued, he would have remained with the respondent until his planned retirement and would have continued to earn at a very high level.

The respondent argued for a much narrower award. It accepted that some wage loss was owing for the period from the end of employment to July 1, 2017, when the complainant began new work with Strive Physiotherapy. It proposed $267,397.26 for that initial period only. The respondent resisted any further award after July 1, 2017.

The Tribunal rejected both extremes. It accepted that the complainant was entitled to substantial compensation beyond the initial period of unemployment. However, it also found that the claim advanced by the complainant rested on assumptions that required significant adjustment.

Human rights wage loss is not wrongful dismissal damages

The Tribunal began with the governing remedial principle. Under Alberta’s human rights legislation, compensation for lost wages is intended to restore the complainant to the financial position he would have occupied had the contravention not occurred.

This is not the same exercise as assessing damages for wrongful dismissal. In a wrongful dismissal action, damages are commonly measured by the reasonable notice period. In a human rights case, the analysis is different. The question is what income the complainant would likely have earned but for the discriminatory conduct, subject to mitigation and principled adjustments for contingencies.

This point mattered greatly in Volpi. The Tribunal was not asking simply how much notice would have been reasonable. It was asking how long the complainant likely would have continued earning income from the respondent, what that income would likely have been, what he actually earned elsewhere, and what deductions or contingencies were justified on the evidence.

The respondent’s post-July 2017 argument failed

The respondent’s main argument was that the complainant had not proven that he was permanently restricted from working the same hours, or earning the same income, after July 1, 2017. On that basis, the respondent argued that no wage loss should be awarded after he began working at Strive.

The Tribunal held that this misunderstood the “but for” analysis.

The wage loss claim arose from the loss of the employment itself. The proper question was not whether the respondent’s conduct permanently disabled the complainant from working at a certain level. The proper question was what income the complainant would have earned had he not lost that employment.

The Tribunal made the point directly: an employer cannot end employment in breach of human rights legislation and then avoid lost wage liability by arguing that the employee did not also prove permanent medical incapacity.

This is one of the most useful damages points in the decision. Once the compensable loss is the loss of the job, the analysis focuses on the income stream likely lost from that job, not only on whether the complainant can prove an ongoing medical restriction.

The evidence supporting the income loss claim

The complainant relied on actuarial evidence. The expert reviewed personal income tax summaries and corporate financial records covering the relevant period. The report compared what the complainant had earned before the end of his employment with what he later earned through Strive.

The respondent argued that the underlying tax and financial records had not been separately entered into evidence and that the actuarial report therefore could not prove the loss claimed. The Tribunal rejected that submission.

Several points were important. First, the Tribunal was not bound by strict courtroom rules of evidence. Second, the complainant had also given direct evidence about his earnings, his fee-for-service arrangements, and the decline in his income after leaving the respondent. Third, the respondent had access to the financial records reviewed by the actuary and had the opportunity to cross-examine both the complainant and the expert. Fourth, the respondent did not call its own actuarial evidence.

The Tribunal accepted the actuarial evidence as a reliable foundation for assessing income loss. That did not mean the complainant received the full amount claimed. It meant the Tribunal had an evidentiary basis from which to make a principled calculation.

The two major adjustments made by the Tribunal

The Tribunal accepted that the complainant had been a long-term, financially successful and valuable worker. It also accepted that he likely would have continued working for the respondent for a meaningful period of time.

However, the Tribunal made two major reductions.

1. A 25% reduction to projected income

The Tribunal reduced the assumed future income from the respondent by 25%.

The complainant’s historical earnings were unusually high. He had been able to generate substantial income in part because of the way his schedule operated. The evidence showed that changes were being made to that practice. The Tribunal concluded that, even if the employment had continued, it was unlikely that the complainant would have maintained the same level of earnings.

A 25% reduction was therefore applied to the projected income from the respondent.

2. A shorter compensable period

The Tribunal also rejected the assumption that the complainant would have remained with the respondent until age 69.

Although the complainant testified that he intended to work until that age, the Tribunal found it unlikely that he would actually have stayed with the respondent that long. There had already been workplace changes and tensions. The Tribunal concluded that a reasonable damages period was approximately 10 years, ending in 2025, rather than the much longer period advanced by the complainant.

These adjustments were critical. They converted a multi-million-dollar claim into a still very substantial, but more restrained, award.

No failure to mitigate

The Tribunal found no failure to mitigate.

The complainant had tried to find new work and did obtain employment with Strive. His actual earnings from Strive were deducted from the income he likely would have earned from the respondent. However, the Tribunal did not make any additional deduction for failure to mitigate.

The Tribunal also declined to make further reductions for COVID-19, a short period away from work for unrelated medical issues, or the potential future value of the complainant’s ownership interest in Strive. On the evidence before it, those matters did not justify reducing the wage loss award further.

The calculation of the lost income award

The Tribunal first accepted the respondent’s concession that the complainant was entitled to $267,397.26 for the initial period when he was entirely without work.

It then calculated the remaining income loss from the second half of 2017 through 2025. For each year, the Tribunal compared the complainant’s assumed income with the respondent, reduced by 25%, against his actual income from Strive.

That additional loss of $697,940.88 was added to the initial $267,397.26. The total lost wage award was therefore $965,338.14.

Why the award matters

The award is important for several reasons.

First, it demonstrates the potentially significant financial consequences of a human rights breach resulting in loss of employment. The award was not limited to a notice period. It was based on a reconstruction of the income the complainant likely would have earned had the employment continued.

Second, the decision shows that a complainant may recover ongoing income loss even after finding new work, where the new employment produces lower earnings and the difference is causally connected to the loss of the former employment.

Third, the Tribunal’s approach was evidence-driven. It relied on tax records, corporate financial information, actuarial evidence, oral testimony, mitigation earnings, and specific contingencies. The Tribunal accepted the income loss model, but then adjusted it to reflect the realities of the workplace and the uncertainty of future employment.

Fourth, the decision is a reminder that mitigation is not merely an abstract argument. The respondent bears the burden of proving a failure to mitigate. In Volpi, the complainant had obtained alternate work and earned substantial income. Those earnings were deducted. But there was no evidentiary basis for a further mitigation deduction.

Conclusion

The lost income award in Volpi is a strong example of the remedial power of human rights tribunals in employment cases. The Tribunal awarded nearly $1 million in wage loss because the evidence supported a substantial lost income stream extending well beyond the initial period of unemployment.

At the same time, the decision shows that human rights wage loss awards remain evidence-driven. The Tribunal did not simply accept the complainant’s retirement-age projection. It reduced the projected earnings by 25% and limited the compensable period to approximately 10 years.

The result was a careful, principled damages award: significant enough to reflect the real economic consequences of the lost employment, but reduced to account for contingencies and the evidence about what likely would have happened had the employment relationship continued.

“`