Basic Principles
From the above principles comes the basic test. Were it not for the unfair dismissal 1 what would otherwise have happened to the complainant’s employment? Were there any intervening causes independent of the code violation which had contributed to the income loss for which the employer ought not to be accountable?
There may be limits placed on the sum of lost income to be awarded. These restrictions are based on the need to show a causal link between the income loss and the human rights violation and secondly, the inherent discretion of the tribunal. 2 This discretion must be exercised on a “principled basis”. The common example given is mitigation. 3
The cases using the principled discretion analysis use as a presumption that once the “but-for” causal link has been met, the claim for lost income will continue until such time as an extraneous factor has intervened to cause its cessation.
Hence, the employer must then introduce evidence to demonstrate that even given liability, the income loss would have ceased at some point in time following the commencement of the lost income claim.
The latter may include submissions such as that the applicant’s employment was doomed to be ended for extraneous reasons due to economic issues, expected termination for performance reasons, a contractual stipulation setting the end date of employment, medical issues which may disrupt the lost income claim, or any such similar plea intended to illustrate that the “make whole” argument would be limited and not as generous as claimed.
Onus
The issue of onus of proof on this issue is not debated frequently. It would appear evident that this obligation is upon the employer, given a liability finding. One case did consider this and concluded that this is, indeed, one put to the employer. This case did note that there may be an argument that this is an evidentiary onus as opposed to a legal onus: 4
The law is clear that the onus is upon the respondent to prove that an employee has failed to satisfy his duty to mitigate his damages. I am also satisfied that the onus must lie on the respondent to prove that but for the discrimination the complainant’s employment would have been terminated in any event. This seems to me appropriate both because it is the respondent who will gain the benefit of a successful argument that an employee’s employment would have been terminated in any event and because information about whether an employee’s employment would otherwise have been terminated is within the respondent’s knowledge and control. As a result, the respondent is best placed to lead that evidence and to bear the burden of proof. While I am persuaded that the legal onus on this issue does fall on the respondent, the same result would follow on the facts of this case even if the respondent bears only an evidentiary burden.
Employment to End
The employer successfully argued that the closing of the business would limited the claim. 5
A similar application of this but-for concept showed that had the applicant not been unfairly terminated, he would have been laid off in any event due to workplace redundancies and the claim was accordingly reduced. 6
A parallel factor was considered by the B.C. tribunal in its 2003 decision. 8
The claim was hence for roughly two years of further lost income.
The employer had argued that the applicant's employment was doomed to be terminated in this time period due to cutbacks. The tribunal was not convinced that this was certain yet did discount the claim by a factor of 20%:
While there is a certain degree of arbitrariness inherent in the process, I am persuaded that in all of the circumstances that it would be appropriate to reduce Mr. Morris’ compensation for wage loss by a percentage designed to take into account the contingency that he might otherwise have had his employment terminated prior to his 55th birthday. Taking the possibilities into account, including not only that Mr. Morris' employment might have been terminated prior to age 55 or that he might have been put, as BCRail contemplated, into a more junior position with a lower salary, I find that it is appropriate to reduce his wage loss claim by 20%.
A similar submission was made in a 2010 Ontario tribunal decision. 9 The tribunal found that the complainant's employment was not secure given ongoing and subsequent reductions to the employer's workforce. For that reason, there was no lost income award allowed.
Voluntary End Date
In a 2009 Ontario decision, the tribunal found that the employer had acted adversely on account of age, by requesting the applicant provide a date for her expected retirement. She did so. The tribunal found that while the conduct displayed adverse treatment due to age, she nonetheless provided an expected end date to her employment, a date which was used to define her claim for an income loss. This became zero on these facts. 10
Employment Doomed to Terminate due to Performance Issues
A recent Alberta decision applied this concept. 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.
The same view was taken in a case in which adverse treatment due to age was found but the tribunal set the award, based upon its acceptance of the employer argument that the applicant’s employment was in genuine jeopardy and she would have been terminated in any event. 11
This conclusion was also made in an Alberta case in which it was shown that, notwithstanding liability for the sexual harassment, the employee was doomed to be terminated in any event and the income loss claim was accordingly reduced to 30 days.12
Much to same end is a decision of the Ontario tribunal in 2011. 13 The hearing concluded that there did exist adverse reasons to terminate the contract in question, yet also determined that this event would have followed in any event, given the evidence of other credible and non-discriminatory reasons that showed the relationship was destined to failure. The result was a denial of a claim for lost income, while yet awarding a remedy for compensatory damages.
Medical Issues
An example of the application of the “but-for” analysis, discounted by risk, is a case in which an income loss was awarded for a 2.5 years, as opposed to the claim made of 14 years.
The applicant had claimed a lost income claim from age 51 to 65, this being his intended retirement date. This plea then raised the issue of his medical ability to return to work in this time period. The tribunal then considered the contingent likelihood of this return to work happening. 14
The claim for lost income was 14 years. The tribunal awarded 2.5 years, based on this assessment. 15
As a parenthetical note, this discount would not have applied if it was the employer's wrongdoing which caused the disability.
In a fact situation in which the applicant was denied the right to complete medical testing, the tribunal found liability. The tribunal did agree that there was some uncertainty as to whether the applicant would have completed the testing process and remained employed, but determined that it was the respondent which should bear this risk. The full claim was allowed as was reinstatement. 16
A further example 17 of the exercise of such discretion was found in the context of an applicant, found to have been adversely treated due to the failure of the employer to accommodate his disability in 2007 and to allow a return to work. No reinstatement was sought. There was no evidence of mitigation offered.
The applicant sought lost wages from the default date to the date of submissions on remedy in November of 2011, notwithstanding his retirement one year earlier. 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. 18
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. 19
Unrelated Issue re Disability Claim
This concept was also applied in Francis in which the applicant's claim for lost income was discounted due to the issues he encountered with his applications for disability payments and hence unrelated to the main event. The Tribunal stated:
The Respondent argues that the Tribunal cannot compensate Francis from the losses resulting from the prolonging and exacerbation of his mental illness arising from his disputes over STIIP and LTD benefits or the litigation process relating to his workplace issues or this human rights complaint. The Respondent says that this has to be taken into account in providing the fair, reasonable, and appropriate compensation to Francis for the wage loss he has suffered as a result of the Contraventions.
I agree that these intervening events are not sufficiently related to the Contraventions to justify compensation. I have taken into account the events occurring after the Contraventions through a reduction in damages because the Respondent is only responsible for the damages they directly cause, and in other words, for the damages that flow from the Contraventions: Friesen v. Moo, 2018 BCSC 1866, at para. 152. There will be a discount to the wage loss award on this basis.
Adverse Comments from Prior Employment
A similar extraneous influence was found in Mema. The applicant's lost income claim was reduced by 25% due to issues he had experienced in his prior employment and the resulting publicity attached to this.
Failure to Mitigate
Equally, the employer may argue that the employee had failed in a duty to mitigate which should influence the lost income award.
An RCMP cadet who was terminated adversely during his training period was awarded an income loss from January 2000 to the date of hearing in April of 2008, subject to a total 8% discount to represent the risk of the applicant not graduating and also usual attrition rates. 20A finding of a failure to mitigate was found which reduced the award by the average industrial wage. The lost income award was increased to reflect a likely promotion to corporal after 7 years. 21At the second hearing to re-visit the income loss, the award was reduced to compensate for lost income for an initial period of 2 years and 12 weeks, referenced in the case as a “grace period”.
In this case the decision of the first tribunal that the applicant 22had failed to mitigate was fatal to the continued income loss. The tribunal then looked for evidence to determine if it was the conduct of the employer that had a caused permanent damage to the ability of the complainant to work. 23 and found none. For this reason, the income loss claim was set only to the end of the grace period.
Notional Termination
Given a successful plea that the employment of the applicant was doomed to end following termination, one might expect that the applicant would then argue for additional compensation for expected common law and or statutory sums. These arguments have, with one exception, failed.
This issue is reviewed here.
Chart
A summary of the above and other cases on this subject appears here.