The above analysis takes a different turn when the applicant has proven that they have been denied the employment opportunity due to conduct of General Reprisal. [this is reviewed in detail here [/efn_note]
This was the successful submission in McKinnon v Ontario, a 1998 Ontario tribunal award. McKinnon had filed a first complaint alleging a poisoned work environment due to racist slurs and adverse treatment due to his ancestry. Two years after filing his first complaint to this end, he commenced a second complaint, alleging reprisal. The complainant's spouse was also employed by the Ministry and alleged similar adverse conduct.
The remedy allowed was to order that each of the complainants be promoted to the position which they were denied due to the reprisal, in addition to an award for lost income due to the denied position.
The analysis used typically in the lost opportunity cases, referenced above, to assess the contingent likelihood of success was not considered, given the finding of reprisal which led to the denial of the promotion.
A similar, yet different, context arose in a case before the Ontario tribunal in its remedy decision in 2013. 1 In the liability decision, it had been determined that certain key shareholders of the company had intentionally prevented the remaining shareholders from considering the applicant to become a shareholder and allow his taxi to be used.
Liability was found, both for adverse treatment and reprisal in the liability decision:
The applicant has proven discrimination and reprisal on the balance of probabilities in relation to the events of April 10, 2007 and that is sufficient to trigger a remedy under the Code. The corporate respondent is responsible for the individual respondents and other shareholders who acted in some way to prevent the applicant’s proposal from receiving full and fair consideration at the April 10, 2007 meeting and is jointly and severally liable with the individual respondents for any remedies arising from the Decision.
No loss of income was allowed as the complainant was not seeking a position, nor was there a duty on the defendants to allow the applicant to be a shareholder:
In the Liability Decision I set out my reasons for finding that the evidence would not support a wage loss associated with the failure on the part of the respondents to bring the applicant and his taxi to Choice in April 2007. The applicant was not applying for a position that existed, the respondents had no obligation to take the applicant into Choice in any capacity, and the applicant’s losses are fundamentally attributable to the fact that his affiliation with Veteran’s had come to an end. For those reasons, I decline to award the wage loss the applicant is seeking.
A remedy was allowed requiring that the applicant be instated as a shareholder:
[14] Determining whether there was a reasonable or serious possibility that the applicant would have been successful in becoming a shareholder in Choice is difficult to apply in circumstances. There was no evidence that the applicant was unsuitable as a candidate for shareholder in Choice, in fact, quite the opposite was proven.On the other hand, in April 2007, Choice was not actively looking for new shareholders.
[15] The real question is whether, given the attitude toward the applicant displayed in the meeting in April 2007, he would ever have been offered a role as a shareholder. The cap on the fleet was partly motivated by profits. However, the motivation to introduce the cap was also directed at ensuring that the shareholders would not have to consider the merits of the applicant’s request and put themselves at risk of further allegations of discrimination. After April 2007, there was no reasonable or serious possibility that the applicant would ever have been offered the opportunity to become a shareholder. However, that situation exists because of the conduct of the respondents and not the qualifications of the applicant.
[16] In these circumstances it would work a serious injustice to find that the applicant had no serious likelihood of becoming a shareholder and then refuse to provide him with a remedy on that basis. The only way to remedy this loss of opportunity is to permit him to become a shareholder at fair market value, adjusted for inflation, as of April 2007. Given the nature of the reprisal, the reasons behind the cap on the fleet, and the lack of objective criteria used to bring taxi owners into Choice, I do not believe that the applicant would have been chosen without intervention by the Tribunal. I cannot say exactly when after April 2007 the applicant might have become a shareholder but for the violation of the Code, but that is due to the conduct of the respondent. In my view this remedy strikes a balance among a number of factors: the remedial imperatives of the Code; the serious nature of the reprisal; the consequences experienced by the applicant; and the recognition that the respondent is not responsible for the many burdens that were imposed on the applicant at that time in his life