Loss of Opportunity to be Hired
In circumstances where the applicant has been deprived of the opportunity to be hired, the tribunal will conduct a review to determine whether the application would have otherwise been successful. Two tests for this purpose have emerged.
Reasonable Possibility
One view is that the decision maker will make an assessment of the “reasonable possibility” that the applicant would have been hired 1 in which the Tribunal concluded that there was a fifty percent chance that the applicant would have succeeded. 2
The same test was applied in a 1986 B.C. tribunal hearing in which the claim was dismissed. 3
A further Ontario tribunal decision in April 2013 4 found that there was "at least a 50% likelihood" that the applicant would have shown success in acquiring the position.
In each instance of success, the damage claim for the income loss was discounted by the relevant percentage of the risk.
As noted below, federal cases have applied the test of "mere but serious possibility" as opposed to "reasonable possibility". The former is seen as a lesser standard. The provenance of the authority for this proposition, as noted below, is in doubt.
To make the digestion of this review much easier, the reader may well wish to proceed to the header "Present Test" as the evolution of the law on this subject to date has shown that the lesser test has prevailed.
Both these tests were reviewed in a 2008 decision from the Ontario tribunal: 5
In cases of the loss of opportunity to be considered for employment, the Tribunal must compensate for the lost opportunity to compete for a position in a non-discriminatory fashion, while taking into account the fact that the applicant might not have obtained the position in any event (even absent any discrimination). In the federal jurisdiction, it has been suggested that if there is a serious possibility that the individual would have obtained the position, then there is loss that is capable of giving rise to an award of damages. The assessment of the amount of damages requires an assessment of the likelihood that the person would have obtained the position in any event...
Another approach is to assess, on a balance of probabilities, whether the complainant would have obtained the position. If not, then no special damages would flow. If so, then lost wages resulting from the lost employment would flow.
Mere But Serious Possibility
Morgan v Canada November 1991
The origin of the "mere but serious possibility" came from a Federal Court of Appeal case in Morgan v Canada.
The issues in dispute in Morgan v Canada were unusual. The Review Tribunal 6 had found that what was in issue was the denial of employment as opposed to the opportunity of employment. The fact as found by the tribunal was one which could not be set aside on review. That first tribunal had determined that the applicant had been denied employment, as opposed to the right to apply for employment: 7:
On the whole of the evidence this Tribunal is unable to conclude that there was a ...”palpable overriding error” which would justify setting aside the factual findings of the Chairman that this was in fact the denial of a position of employment arising from the discriminatory act by the Appellant", as opposed to a lost opportunity for employment and his findings on this issue stand and that ground of appeal is dismissed.
This decision was set aside by the Federal Court of Appeal in November of 1991. There were three separate decisions, however, to come to this decision. 8
As to this issue of the correct test, there were two different views offered by two justices on the panel. The third justice offered none.
Marceau J.A. concluded that a “serious possibility” of success would be sufficient. MacGuigan J.A., however, stated that the test was that of “probability”. Mahoney, J.A. elected to defer his views on this issue, as the more onerous burden had been met, in any event. There was clearly no majority decision on this issue.
It is the words of Marceau, J.A. which have been quoted most frequently following this decision and indeed have become the touchstone of this test in federal proceedings:
“[14] …It seems to me that the proof of the existence of a real loss and its connection with the discriminatory act should not be confused with that of its extent. To establish that real damage was actually suffered creating a right to compensation, it was not required to prove that, without the discriminatory practice, the position would certainly have been obtained. Indeed, to establish actual damage, one does not require a probability. In my view, a mere possibility, provided it was a serious one, is sufficient to prove its reality…”
1995 Uzoaba Federal Court
A Federal Court review decision followed in 1995 9 This decision quoted Morgan as authority for the proposition that the test was a "serious possibility":
There was some evidence indicating a serious possibility Dr. Uzoaba would have attained the level of WP-5 by the time of the Tribunal's decision. For the "serious possibility" test, see Canada (Attorney General) v. Morgan, ...at page 411 per Marceau J.A.
Singh November 1998
A federal tribunal decision repeated the same pattern in 1998. 10 This tribunal once again used the Morgan decision as authority for the proposition that the test was "serious possibility", which was clearly a singular decision of one justice of the panel:
Before making any such award, however, the Tribunal must be satisfied that there was at least a serious possibility, if not a probability that the complainant would have received the position, but for the discrimination (Morgan, supra.)
Chopra August 2004 - mere but serious possibility
The issue of the correct test to be applied in the event of a denial of an opportunity, in this case a promotion, was again considered by the federal human rights tribunal in August of 2004. In this instance, the tribunal used the test of a “mere but serious possibility of success”, to which contingency risk factors were then applied. 11
It then determined that he would have met the same test as a permanent hire, yet discounted the award by two-thirds. The time period of the loss was 6 years.
Chopra FCA August 2007
In August of 2007, the Federal Court of Appeal took issue with the conclusion in law that a “mere but serious possibility” of attaining the new position was the correct test to apply and noted that the genesis of this proposition, which was stated to originate from Morgan v Canada, was not reliable as it came without a clear majority opinion on this issue. This court clearly expressed some concern as to the propriety of this test, yet noted that this issue was not before it on the appeal:
The issues raised on this aspect of the appeal have to do with the narrow question of the use of certain loss‑limiting concepts from the law of remedies in the determination of compensation for victims of discrimination. Notwithstanding the lack of a majority in Morgan on the “mere but serious possibility” test, the application Judge treated Marceau J.A.’s reasons as the current state of the law on this issue. That position was not attacked in argument before us.
Tahmourpour April 2008
This issue arose again in a case in which a candidate for the RCMP had been adversely treated in a cadet training program due to religion and ethnic origin. The “serious possibility” standard was applied to determine that he would have passed the training. 12
Present Test
Kelly 2013
The B.C. Tribunal used the same test in its 2013 decision. 13
Hughes 2018 Tribunal
The most recent application of this same test was in a tribunal decision in 2018. 14 The applicant had asserted that following his reinstatement as had been ordered in a prior hearing, he would have been eligible for and received a further promotion. The tribunal stated the test for such a plea was that as stated in the decision of Marceau, J.A. in Morgan:
The employer drew to the attention of the tribunal the concerns expressed by the Federal Court of Appeal in Chopra, as noted above. The tribunal reviewed this submission and yet concluded that the state of the law showed an affirmation of the "mere but serious possibility" test, while acknowledging that it was but one of three decisions in the case.
Many cases have repeated this as the test. 15
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. 16. 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".
Remedy of Instatement
The potential relief is not necessarily limited to only monetary compensation, as the above cases would suggest. The federal tribunal ordered that the employer instate the complainant to the position that she had been denied due to adverse treatment due to gender. 17 Absent the availability of such a position, an order was made for lost income from June 1, 1997 for a ten year period. The decision date was November 15, 2011. There was to be an offset for alternate income earned in this event. The potential prospective income loss was then roughly 5 years and 6 months.
A similar issue arose in the B.C. tribunal decision of Kelly v U.B.C. 18
Kelly had been unfairly deprived of the opportunity to complete a post-graduate program due to a medical disability. The decision allowed Kelly to enter this program, one which had been delayed due to this adverse treatment. 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. 19
This decision followed the concept of the make-whole philosophy:
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 became the period of compensation, set from May 29, 2007 to 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.
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.
Damages for Injured Feelings
Given actionable unfairness in the selection process, an award of compensatory damages for that discrete issue should follow, even where it has been determined that the applicant would not have succeeded, no matter which test has been applied.
This was the result in DeSouza. The tribunal found that the applicant would not have been hired on the merits, notwithstanding an adverse finding in the manner of treatment in the application. An award of damages for injury to dignity was allowed in the sum of $15,000.
The same theory was used in a 2011 Ontario tribunal decision. The finding again was made that the applicant for a position as a firefighter was treated unfairly in the selection process, yet nonetheless would not have succeeded in his application. Consequently no lost income award followed, yet a compensatory sum was ordered of $10,000. 20
The award made by the tribunal in Kelly was $75,000. This was reversed on first review and later restored by the B.C Court of Appeal.
Tax Issues
A successful claim for the loss of expected employment income would like not be taxable. This review is found here.