Human Rights Damage Awards

various

 

Case

Trib

Year

Issue Lost Income Award
Tribunal Decisions – Lost Income
Treane v City of Windsor HRTO

2011

Age related medical testing 2 years and 4 months
Kelly v. University of British Columbia; upheld on judicial review by B.C. Supreme Court and Court of Appeal

 

BCCA

2016

BCSC

2015

BCHRT

2013

Mental disability 6 years lost income award due to the delay in obtaining certification in the sum of $385,000.
(Gorksy) in McKee v Hayes-Dana 17 CHRR D/ 79. age 8 years lost income plus future loss as noted below.
Ontario Human Rights Commission and Karumanchiri et al v Liquor Control Board of Ontario 8 CHRR D/4076 (Baum)

Aff’d Divisional Court 9 CHRR D/4868.

B of I

Div’n Ct

Applicant was instated to the promoted position of Chief Chemist.

 

8 years of income differential. The award of lost income was not raised by the employer upon the unsuccessful judicial review but success would likely have impacted this award.
Singh v Statistics Canada

CHRT

1989

The applicant was instated to a more senior position due to a finding of adverse treatment due to age and awarded the income differential from August 1989 to the date of instatement in November of 1998.

 

9 years income differential
McKinnon v Correctional Services #3

HRTO

2007

Order of instatement plus salary differential for 9 years to applicant and his spouse.
McAvinn v Strait Bridge Crossing

CHRT

2001

An order was made requiring that the first available position of a bridge patroller be awarded to the complainant in its decision of November 2001. The commencement date of the lost income award was May 31, 1997. The award stated that failing such an offer of alternate employment, the total lost income was to be set at a 10 year period. The contingent prospective loss was hence set for a time period of six years and seven months.

 

Turner v Canada Border Services

The liability finding was set aside by the Federal Court in October of 2015. A reconsideration decision set out the means of proceeding for a new hearing de novo.

 

CHRT

2015

Perceived disability Compensation to the date of hearing – 10 years
Reverend Gael Matheson v Presbytery of Prince Edward Island

PEI

HRC

2007

Adverse treatment due to gender $425,000 lost income award to the date of the hearing which was 10 years, plus tax gross-up plus reinstatement. In addition, $5,000 for medical and out-of-pocket expenses, $1,000 education allowance and $17,810 for pension loss
Fair v Hamilton-Wentworth, upheld by the Divisional Court, in turn upheld by the Court of Appeal

 

HRTO;

2013

Div Ct

2014

OCA

2016

Failure to accommodate disability The lost income award was not specifically challenged upon review. The final lost income award was roughly 12 years, although it is not specifically set out in the decision. This was the time period from termination to the final order of the Court of Appeal.
Datt v. McDonald’s Restaurants (No. 3)

BCHRT

2007

Adverse treatment due to disability Lost income from termination date to the date of hearing, being one year and 9 months; tax adjustment
Toivanen v. Electronic Arts (Canada) (No. 2)

BCHRT

2006

Adverse treatment due to disability Award made for lost stock options of $69,000 US based on average post termination value; “lost severance pay” of $19,000
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.
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
Future Loss – Human Rights Tribunals
McKee v. Hayes-Dana Inc. (1992), 17 C.H.R.R. D/79. Ont B of I age 15 months prospective loss
 Rajput v Algoma University College (Tarnopolsky). Ont B of I

1976

A subsequent vacancy was advertised for a similar position in February of 1975, to which Dr. Rajput applied. It was found that he was not successful in this application due to racial discrimination.

Reinstatement was not ordered due to the impact of such an order on innocent third parties.

The complainant, a Sociology professor, had been given a terminal contract by the university for the academic year running from July 1, 1974 to June 30, 1975.

An order of compensation was made for the next academic year was made as a prospective loss of income instead, dependent upon the attempts made by the complainant to seek alternative income in this time period internally and externally.

 

Turner v Canada Border Services

The liability finding was set aside by the Federal Court in October of 2015. A reconsideration decision set out the means of proceeding for a new hearing de novo.

 

CHRT

2015

5 years prospective loss
City of Calgary vs Canadian Union of Public Employees, Local 38. Arb Award

2013

The maximum period for the future loss was nine years, this also being the date when the employee would be eligible to receive retirement benefits.

The panel concluded a fair date to use for a future income loss would be based on a likely return to work date of July 1, 2018. The date of the decision was December 1, 2013. The future income loss was hence established to be $512,149, which was reduced by a 10% risk factor and a discounted rate for a present payment of a future income stream of 2.25%.

 

McAvinn v Strait Bridge Crossing CHRT As above – 6 years and 7 months
Future Loss – non Human Rights Cases
GTAAA v PSCA Local 004 Reinstatement denied. Future loss awarded in lieu. Div Ct agreed that the future loss of 2 years was correct as the arbitrator considered mitigation and future contingencies in the shaping of the award.

 

Mathur v Bank of Nova Scotia, Armstrong Adjudicator

(not Mahavir Mathur v Bank of Nova Scotia)

Unjust Dismissal case under the Canada Labour Code. Reinstatement was denied. Award of future loss was subject to monthly reports on active mitigation. 1 year and 2 months to date of retirement.
Future Loss - Tort Cases – Employment Sexual Harassment
Silvera v Olympia OSC

2015

Sexual assault

Intentional infliction of mental suffering; breach of fiduciary duty; Occupier’s Liability Act;

Breach of obligation of good faith and fair dealing at the time of dismissal

$42,750 for future therapy care, $33,900 for future lost income. Case was undefended.
K.T. v Denis Vranich, Elixir and Paradise Lane Developments Hamilton Inc.

 

OSC

2011

Breach of fiduciary duty

Victims Bill of Rights Act

Battery

Negligence

Summer student physically assaulted. Defendant confined her, touched her breasts and vagina, laughing while he did so.

 

Loss of future earnings of $75,000.
Hudson v Youth Continuum, Phillip Brindle and The Brindle Agency Inc OSC

2012

Negligence and vicarious liability.

The plaintiff was viciously attacked and raped by a troubled youth under her care. She was required to change her chosen career.

$300,000 in future income loss.  The case was undefended.
City of Calgary Arb award

2013

Sexual harassment; “fondled” on multiple occasions at her desk. The complainant was harassed following her request for an investigation. She suffered acute anxiety and suicidal ideations. The arbitrator was empowered to consider human rights, tort and arbitral remedies. Future income loss $500,000.
Future Loss - Tort Cases – Non Employment or Employment & Non-Sexual Harassment
Employment Cases – Non sexual
Boothman v Canada FC TD

1993

Employment case. Assault

Intentional infliction of mental suffering

Verbally abusive and threatening language.

 loss of future earnings $20,000
Shulz v Attorney-General and upheld on appeal although no issue of liability on appeal BC CA

2006

Employment case. The claim based on verbally abusive conduct, not sexual harassment.

Negligent infliction of mental suffering

$600,000 future income loss
Non-Employment Cases – Sexual Abuse
R.B. v E.S. OSC

2017

Plaintiff sexually abused by her criminal lawyer. Single instance of non-consensual physical abuse. $5,000 future counselling
Waters v Bains BCSC

2008

Sexual abuse by aunt and uncle $10,000 costs of future care
A.B. v C.D. BCSC

2011

Sexual touching by teacher to student Damages for loss of future earning capacity and future care expenses of $20,000.

 

Rosenthal v Rosenthal OSC

2014

Sexual abuse by parent $45,000 future income loss. The case was undefended.
Evans v Sproule 2008 Sexual assault by police officer in cruiser while on duty. The plaintiff suffered from post-traumatic stress disorder, anxiety and depression requiring medical treatment.

 

$40,000 lost earning capacity, $12,342 future therapy costs.

 

L.M.M. v Nova Scotia NS CA

2011

Sexual assault in non-employment context against same defendants as above in parallel case $60,000 future counselling. The Appeal allowed the future counselling which was neither denied nor awarded at trial.
D.M. v W.W. OSC

2013

Claim of sexual abuse as a 12 year old against uncle $85,000 loss of earning capacity, $10,000 future care. The damage assessment was undefended.
B.M.G. v Nova Scotia NS CA

2007

Sexual assault in non-employment context $500,000 for past and future income loss.