Remedy – Lost Income

Unjust Dismissal: Remedy: Lost Income

The principle of assessing such a loss is not based on wrongful dismissal concepts. This principle is firm. 1

The purpose of the monetary remedy is, as in the case of human rights jurisprudence, to make the victim whole. 2 The case law in human rights is similar. Cases in human rights jurisprudence may also be argued, as the same principle of make whole is also used.

The Board is allowed by the Code to order lost compensation to be paid  “not exceeding the amount of money that is equivalent to the remuneration that would, but for the dismissal, have been paid by the employer.” The principle underlying this remedy is that the complainant should be put in the position she would have been in but for the unjust dismissal.

One example is a case in which the adjudicator ordered lost compensation from the date of termination to the hearing date, this being from August 3, 2010 to March 3, 2012. 3

Duty to Mitigate

The common law on this issue has been used by adjudicators to establish the income loss. This includes the Supreme Court of Canada decision in Evans. 5

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Footnotes

  1.   Hussey v. Bell Mobility FCA May 2022; leave to appeal dismissed
  2. Slaight Communications Inc v Davidson FCA at pg 257, upheld in SCC
  3. Zakhary v United States of America March 2012 Adjudicator decision
  5. Lopez v Bank of Nova Scotia Adjudicator Bendel /efn_note] In this case, the employee was found to have failed to accept a reasonable alternate position by the employer. The employee ultimately did accept the new position, some 32 months following the date on which the offer was first made.

    Mitigation is also reviewed here as applied to common law cases.

    There is little doubt that the income earned post-termination will offset the lost income claim. 4 Canada v Hanna FCA 2021