Human Rights Damage Awards

Cases Limiting the Income Loss Claim

 

Tribunal Decisions Limiting Lost Income Claim
Clennon v Toronto East General HRTO

2009

No lost income claim as termination for performance reasons would have followed in any event.
Hughes v 1308581 Ontario Ltd HRTO

2009

Business closed. No income claim beyond this date.
S.H. v M. Painting HRTO

2009

Income loss mirrors seasonal aspect of employer’s business.
Milano v Triple K CHRT

2003

9 months. Employment would have then ended, regardless of unfair conduct.
Osvald v Videocomm HRTO

2010

Prior performance limited claim as did intervening event of complainant’s pregnancy.
Elliott v Can-Art HRTO

2014

Lost income claim of 2.5 years limited by intervening medical issues and lack of evidence as to impact of the impact of this intervening medical issue and impact on subsequent unemployment. 3 months awarded.
McLean v. DY 4 Systems

 

HRTO

2010

The Tribunal noted the extremes within which an order for lost wages may be made from (1) no lost wages due to the likelihood of a termination for non-discriminatory reasons to (2) a claim for lost income to the date of the hearing or beyond it. A three year award to the date of retirement was made, given the uncertainties of a successful return to work, influenced by that fact that the applicant had been medically unable to work for three years prior.

 

Schulz v Lethbridge AHRC

2012

30 months allowed against 5 years sought – other factors intervened at 30 months
Lane v AGDA

The case went to Div Ct but not on this issue.

HTRO

2007

Div Ct

The applicant had been terminated due to a medical disability in October of 2001. His physician found him medically able to return to employment in February of 2002. A lost income claim had been sought to August 2002. The claim for lost income was allowed to June of 2002. The tribunal found that beyond that date, other factors had intervened to cause the income loss for which the employer could not be held responsible.

 

Walsh v Mobil Oil Alta CA

2013

 gender and reprisal Lost income due to adverse treatment and reprisal of $472,666 and pension loss of $139,154 and counseling bills of $10,000; Six years of lost earnings was not fully compensated due to intervention of other extraneous factor.

Alta CA agrees with tribunal “Ms. Bryant heard substantial medical evidence as to the appellant’s mental and physical health. She found that the appellant was unable to work after her termination because she was suffering mental distress caused by Mobil’s conduct, which exacerbated her physical problems. She also found that after 2000, the appellant’s depression and physical problems stemmed from other sources. That conclusion, while not the only one available, is sustainable on the record. This ground of appeal must be dismissed”

Yaschuk v Emerson Electric Canada Limited

 

Alta

Trib

2022

Sexual harassment & retaliation The employer successfully proved that the complainant's employment was destined to be terminated, regardless of the adverse conduct, one month following the actual date of termination, which was found to be due to her complaint of sexual harassment. The income loss was so limited.
 
Mitigation
Li v University Health Network HRTO

2014

Failure to mitigate. Claim denied.
Farris v Staubauch HRTO

2011

Failure to mitigate. Claim denied.
Tahmourpour v RCMP.

This 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.

 

FCA

2016

Due 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.

 

Failure to mitigate substantially reduced income loss.
Anderson v Law Help HRTO

2016

Claim limited by failure to mitigate.
Payette v Alarm Guard HRTO

2011

Claim denied due to failure to mitigate
Davis v Nordock HRTO

2012

Claim denied due to failure to mitigate
 
Discounts Applied
Howard v U.B.C Tribunal

B.C. 1992

Employer failed to accommodate the disability by providing a sign language interpreter Discount applied of 40%: “Considering the uncertainties in the career path chosen by the complainant and the uncertainty expressed by the complainant as to his choice of careers, I am of the opinion that a relatively large deduction should be made for contingencies
Thwaites v CAF . Canada HRT

1993

Adverse treatment due to disabilty Discount of 10%.The risk was determined to represent the likelihood that the applicant could have resigned from his career with the military prior to the commencement date of the future loss and the possibility of the applicant’s death
Chopra v Canada tribunal decison ; upheld on first review and by FCA FCA

Aug 2007

race Claim for lost income due to lost opportunity was reduced by 2/3 to reflect high level of uncertainty
City of Calgary vs Canadian Union of Public Employees, Local 38. Arbitration

2013

Sexual harassment Future loss was roughly 4.5 years. Future income was discounted by 10% to account for the risk of the applicant’s ability to return to work. A further discount was applied of 2.5% to adjust for present payment of future income stream.
Kelly v UBC BC HRT

June 2024 BC CA

Mental disability Lost income claim reduced by total of 30%, to represent risk of not completing the program (10%) and due to the likelihood of not being able to have a full medical practice. (20%)
Francis v Justice BC HRT

Jan 2021

Adverse treatment due to race Lost income claim reduced due to impact of controversial issues surrounding his prior employment. Discount was 20%.
Mema v Nanaimo BC HRT

Aug 2023

Adverse treatment due to race Lost income claim reduced by 25% due to issues stemming from prior employment