It would be expected that human rights tribunals and similar administrative forums dealing with reinstatement or termination claims would apply the same legal concepts as a common law court.

This was not the case, however, in the British Columbia Supreme Court decision in McIntosh v Metro Aluminum Products which sat on a judicial review of a Human Rights Tribunal decision which did not apply the onus as in Red Deer and Evans. The Court determined that Section 37 of relevant Code gave discretion to the Tribunal to order compensation for “all, or a part” of the lost wages. It was asserted on review that the Tribunal made a legal error in not applying Red Deer and Evans principles, a decision which the Court determined that the Tribunal was entitled to make and that there was no legal obligation to apply the onus of Red Deer and Evans.

For further review, please note this analysis.