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[Human Rights: Lost Income: Cases Limiting the Claim]
Human Rights: Lost Income: Cases Limiting the 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. Prior severance offer was allowed as a damage claim. | |
| 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 14 years sought. The decision is vague as to the reason why the lost income ceased at this point. (par 81) | |
| Lane v AGDA. Case went to Div Ct but not on this issue. HRTO 2007 Div Ct 2008 | 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. | |
| The case went to Div Ct but not on this issue. | ||
| Walsh v Mobil Oil Alberta Court of Appeal 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 AHRC 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. CHRT 2008 | 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. |
| 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. Federal Court 2009 Federal Court of Appeal 2016 |
||
| 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 BC HRT 1992 | Employer failed to accommodate need for 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 . CHRT 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 CHRT 2004 Federal Court 2006 Federal Court of Appeal 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. 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 Court of Appeal 2016 | 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 August 2023 | Adverse treatment due to race | Lost income claim reduced by 25% due to issues stemming from prior employment |
| Y.Z. v Halifax Regional Development NS HRC May 2019 | adverse treatment due to race led to permanent emotional harm and the inability to return to work | Lost of income claim, past and future was discounted by 50%. Total award, after discount was $433,000. Award of costs of future care was also subject to the same discount. Net award was $21,675. |
| 40% of the 50% discount was due to external factors, such being the impact upon the applicant of the death of a co-worker, pre-existing GI and back issues, and non-discriminatory workplace conflicts. Lost income sum was allowed, subject to the 50% discount until age 60, this being the date on which the magic "80" number of years of service and age would have been attained to allow for a full pension. | ||
| The remaining further 10% was due to the failure of the applicant to accept the offer of a transfer to a different work location. | ||
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David Harris — Canadian Employment Law
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