As a general rule, it would appear that the complainant remains under an obligation to take reasonable steps to seek out comparable employment, as is the case in common law wrongful dismissal actions. The onus of proof will be upon the employer. 1
There are some inroads suggested in this principle as discussed below which reflect the considerable discretion given to the tribunal and that the principle that the human rights process is not required to march lock step with common law principles. 2
The common law has defined the onus on the employer as twofold. The employer must show a breach of the obligation and secondly, must then introduce affirmative evidence to show that had the employee taken reasonable steps to seek employment, success likely would have followed. 3 This has been the general direction of the human rights panel. 4
This being said, the path has not been straightforward. The issue of “principled discretion” and the interpretation of the B.C. statute allowed the tribunal to order “all, or a part” of the lost wages 5 without regard to Red Deer and Evans. 6
In human rights cases, different considerations in assessing the mitigation obligation may apply. 7
For example, a tribunal should take into consideration the after-effects of exposure to a poisoned work environment in looking at the duty to mitigate 8. Should this plea be made, appropriate supportive medical evidence should be provided. 9This onus is upon the applicant, that is, to explain why there has been a failure to mitigate by proper evidence. 10
How far down the field this analysis pushes the ball is highly debatable. At the end of the day, it would appear there has been no dramatic revision to the traditional view that mitigation is the order of the day.
A fair synthesis may be that the Tribunal will look to mitigation as the usual requirement but has considerable latitude in its discretion 11as to whether this obligation has been fulfilled and is not bound by traditional common law concepts. 12
Where there has been a finding of a failure to mitigate, the Tribunal may assess what a fair time period to find other employment would have been and use this conclusion for the assessment of the income loss. 13
Occasionally arguments may arise by which the employer may assert that the applicant had an obligation to return to work based on an offer made of comparable employment following dismissal or an alleged dismissal, referring of course to Evans.
This issue has been reviewed in two important human rights cases to date.
In one case 14in which the applicant had been subjected to sexual harassment and gender violations, the employer, a school board had agreed to re-employ the applicant on terms which the complainant found unacceptable. The applicant was penalized for her refusal to be re-employed, a decision which was reversed on first review. 15
Upon further review by the Court of Appeal, this court determined that the Tribunal was not mandated to apply the common law concept of mitigation in assessing the income loss and allowed the tribunal decision to stand.
The Court of Appeal concluded that the Tribunal’s decision, whether or not it chose to apply Evans or not, was a discretionary one and could not be challenged on judicial review. In addition the appellate court found that the chambers judge applied the wrong test of correctness and should have used the test of reasonableness and afforded the Tribunal deference.
Long before the Evans decision, the Ontario Board of Inquiry came to the same conclusion. A maintenance mechanic due to his refusal to work on the Sabbath and was ordered to be reinstated. The employer had offered to him alternative employment as a “springer” or “packer” following the dispute. The “springer” position was seen to be overly physically demanding, but the “packer” position was a job the employee could have performed but chose not to, as it was a Grade 5 level position, compared to that of the mechanic which was a Grade 17 and paid 42% less than the more senior position. The packer position however was accompanied by production bonuses which may have allowed the complainant an income which was approximate to his prior income level or even exceeded it, as was found.
The Board found that the employee could have worked in this position without waiving his right under the Code to seek the remedy in question. The Board concluded that he ought to have accepted this position until the hearing took place or until such time that he found other employment. The claim for lost income was denied. 16
Generally reasonably incurred mitigation expenses 17 will be awarded. Additional travel expenses for new employment, 18and also moving expenses. 19