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 Cana dian 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

Human Rights Damage Awards

Cases Limiting the Income Loss Claim