Future Income Loss
It is not contested that a human rights tribunal has the authority to make an award for a future income loss beyond the date of the hearing, 1even in the absence of a reinstatement request. 2 Such a prospective income loss of 15 months was made in an age discrimination case. 3 A case in which the applicant did not seek reinstatement allowed a five year prospective lost income claim.4
There is a direct similarity in assessing a future income loss and a claim of economic loss due to a denial of the opportunity to apply for a particular position, be that as a new hire or a promotion.
In the case of a "true future loss" from the date of the hearing forward, the tribunal looks to likely future events in the given context and determines such probable income loss and then assesses an appropriate discount to account for risk factors.
In the circumstance of a lost opportunity, the tribunal looks to the date of the violation, clearly a past event, and then assesses what likely would have happened from such date forward. This again allows for a determination of the same risk factors to arrive at a fair discount.
The analysis is essentially the same. One predicts the future from the judgment date, while the other predicts the future from a past date. For the sake of clarity in this review, the former will be referenced as a "pure future" claim and the latter a "retrospective future" claim.
Extraordinary as the test ?
One decision noted that an issue with respect to the assessment of a pure future loss is that there is no control over the mitigation factor 5and for that reason it would only be made in “exceptional circumstances”.
It is controversial that "exceptional circumstances" must be present to allow for such an award, as the cases below will reveal.
That being said, this was precisely the January 2021 decision of the B.C. tribunal in Francis, noting the difficulty in assessing future events. The words "extraordinary circumstances" and "speculative" were repeated again in this instance.
However, the tribunal noted that Francis had been assessed as unable to work in any capacity and had displayed a guarded prognosis for recovery, which were distinctive features. Given the medical finding of a permanent impairment and related factors, this case was determined to one which showed such "extraordinary circumstances" to justify such an award. 6
This was not the test used by the federal tribunal in Turner v Canada, above, nor was this the ratio of the Ontario Board of Inquiry in McKee. Both these cases were pure future loss claims.
The Ontario tribunal in McLean v DY4 Systems did tip its hat on this subject with respect to a pure future award from May 2010, the date of the hearing, to April 2011, the 65th birthday of the applicant, rejecting a claim for a discount to reflect likely a redundancy, while inviting further submissions on the issue. The tribunal did note that such an order would be one of continuing income, less an offset for income earned, should such an order be made.
There was no reference to "exceptional" in this limited review, but the tribunal did note in making such an award, that such an order is not frequently made. The reference to "compensatory award" below speaks to this issue of a future income loss:
In my view, the Tribunal must have regard to the circumstances of the specific party, as discernable from the evidence before it, in making any compensatory award. In employment cases, the question of whether the party has asked for reinstatement is relevant, but, in the absence of a specific provision in the Code, I do not think it can be determinative. The Tribunal must take into account all of the facts established by the evidence. Here, there are circumstances that in my view might warrant a prospective wages and benefits award, or an order even in the absence of a request for reinstatement.
Nothing Exceptional in the Cases Which Follow
In 1993, the B.C. tribunal also considered and awarded a sum for a retrospective future income loss. 7 The applicant had shown that he was treated adversely due to a disability and the failure of the respondent to accommodate his disability of deafness by providing a sign language interpreter. The tribunal had agreed that the applicant's career as a teacher had been delayed for three years due to this violation. The future loss was based on this resultant delay in his career progression.
The accepted approach was to apply the make-whole concept and calculate the difference between what he would have earned as a teacher, given no delay and that which he would then earn in his present circumstance. This would require the assessment of such future likely events, subject to a risk assessment to account for uncertainties. A discount in this instance was applied of 40%. The resultant future lost income claim was set at $30,636. There was no suggestion that this was somehow an "exceptional" remedy.
The same tribunal in B.C., which had cited the "exceptional" grade for such a loss, also allowed such a retrospective future loss in Kelly v UBC in 2013. This decision followed the concept of the make-whole philosophy. 8
The decision allowed Dr. Kelly to enter the post-graduate program, one which had been delayed to the decision of UBC to deny him entry due to a medical disability. An income loss was allowed, less a discount representing the risk of him not completing the program, set at 10% and a further discount of 20%, designed to reflect the future possibility of him being unable to maintain a full time medical practice. 9
As to the issue of assessing the income, the tribunal noted the fundamental objective of such an award, namely, to be made whole, citing the 1993 B.C. Tribunal decision in Howard above: 10
A complainant is entitled to be "made whole". In doing so, it may be necessary to consider the effect of the discrimination on a complainant's future income. That calculation is necessarily speculative. In some cases, the evidence may indicate a denial of a specific job at a specific wage for a specific period and, therefore, the calculation of lost wages can be relatively precise. In other cases, the evidence may show that, had the discrimination not occurred, the complainant would have competed for a job but the likelihood that the complainant would succeed in the competition was too uncertain to warrant any compensation for wage loss. This case does not fall at either extreme.
Kelly had been terminated from the program on May 29, 2007. The remedy decision was made on December 19, 2013.
Prior to his termination, Kelly was on track to become a medical practitioner in January of 2010. Given the restoration of Kelly into the program by this decision, he would now be expected to have his medical licence in January of 2016. This six year delay set the period of compensation, beginning on May 29, 2007 and ending on January 1, 2010.
The arithmetic of the wage loss then ran from May 29, 2007 through to January 1, 2016. As the hearing date was December 17, 2013, this would allow for a "future" income loss for roughly two years. The claim for “past” income loss was also speculative as this also presumed that Kelly would have otherwise passed the program.
The damage claim arguably represents a complete future award as the tribunal was required to speculate on that which would have followed, from May 29, 2007 forward, had Kelly been shown proper accommodation.
As the claim for the income losses involved what was in essence a loss of opportunity, it was necessary to prove that the position in question would have followed, save the adverse conduct of UBC. 11
As was the case with similar lost opportunity cases, the risk of not completing the program, or indeed all similar risks, must be assessed and an appropriate discount applied to reflect the degree of such risk.
The total lost income sum was set at $385,000.
The Canadian Human Rights tribunal awarded a future lost income claim in its 1993 decision. The applicant had been adversely treated due to being HIV positive. His future income claim was allowed, subject to a 10% discount, as was the claim for a past income loss. 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 12 and the medical evidence which showed a life expectancy of five years may have been overly generous. A total sum of $147,000 was allowed for both past and future claims. The case was one of a retrospective future loss.
The Canadian Human Rights Tribunal 13 ordered that the first available position of a bridge patroller be awarded to the complainant in its decision of November 2001. The case was based on the denial of a position of employment based on gender. This was a contingent pure future loss, contingent in the sense it was dependent on the event described below.
The award stated that failing such the availability of such an offer of alternate employment, the total lost income was to be set at a 10 year period. The commencement date of the lost income award was May 31, 1997. The decision was made on November 15, 2001. There was thus an award of a past income loss and a potential future income claim, should she not be instated to the position.
The contingent prospective pure future loss was hence set for a time period of five years and six months. Any alternate income in this event, would offset the future income loss. There was no reference to the need to show an exceptional event.
It is true that the assessment of a future loss is not mathematical. The difficulties inherent in the assessment of the claim should not, however, lead to a denial of the application of the concept. Such damage claims are common place in tort actions. The difficulty in assessing the likelihood of mitigated income should not be a barrier.
Future Claim Subject to Offsets
Other decisions have prudently considered the impact of other employment post-hearing and ruled accordingly, also attaching a qualifier of an offset of future earned income. The Ontario Board of Inquiry made a similar contingent order for a prospective income loss in the May 1976 decision of Rajput v Algoma University College (Tarnopolsky). 14 15
Discount for Risk
A further option is to simply assess the likelihood of future alternate income and apply a discount to the sum sought as the full prospective loss. 16 17
These decisions demonstrate how a future income loss may be assessed. The remedy should not be ignored because of the possibility of such future income off-sets.
There is authority in an arbitral context to allow for a prospective income claim where reinstatement is not allowed as noted immediately below. 19 less any sums earned by the grievor in this period. As noted by the Divisional Court which upheld the award on this issue, the arbitrator correctly considered mitigation and other future contingencies.
Supreme Court of Canada on Pure and Retrospective Future Loss
The Supreme Court of Canada, while not on this topic directly, did weigh in on the concept of assessing a future loss, whether this be a "pure future loss" or a "retrospective future loss" in its 1996 decision. 20. The Supreme Court noted that there is a fundamental difference between the way a court reviews alleged past events and the method by which a court assesses "potential future or hypothetical events".
Hypothetical events, which are referenced here as "retrospective future events" or future events, cited here as "pure future events" need not be proven on a balance of probabilities. Rather, such issues are "given weight according to their relative likelihood". To that end, a future or hypothetical possibility will be considered as a factor in assessing the risk "as long as it is a real and substantial possibility and not mere speculation".
Common Law Comparator
Tribunals may consider the application of common law principles in case where the assessment of the notice period has been made before the expiry date of this time period, and hence have considered a future claim beyond the judgment date, as reviewed here.
The three alternatives considered in this context have been:
1. consider the context and apply a discount, or determine no discount is appropriate;
2. apply a trust which will then be offset by future income;
3. consider a partial judgment for the time expired to date and return at a future date, presumably to assess the mitigation issue and review the extent of income then earned.
Other Future Losses
The B.C. made an award of $400 for a future psychological care in 1994. 21
A similar order was made by the B.C. tribunal in a 1999 decision. 22 An award was made of $5,200 for 24 months of counselling services due to allow for recovery of the adverse impact of sexual misconduct.
The abitrator in the 2013 Calgary case also allowed $28,000 for future therapy costs.
In 2018, the tribunal in the Newfoundland & Labrador, 23 a further sum of $15,000 was allowed for future psychological counseling.