Logical illogical road sign

In the past, the Ontario Board of Inquiry has shown a willingness to abide by the remedial principles of the Code and make complainants “whole”.  Future prospective lost wage orders were not balked at. See the 1992 decision, McKee v. Hayes-Dana Inc. et al.[i] for example. Mr. McKee had worked for the Respondent for over thirty-two years. He was a 57 year old foreman when his employment ended. The Board found that McKee’s age played a material role in the employer’s decision to compel him to choose between indefinite lay-off or early retirement. Two younger foremen were retained, while the two older foremen (including McKee) were forced out. In addressing remedy, the Board stated at page 22:

It is ordered that the Respondent, Hayen-Dana Inc., compensate the Complainant, Allen McKee, for lost wages and benefits from October 1, 1985 to the date of his 65th birthday.

This remedial order, aside from ordering 8 years lost wages, included future prospective lost wages that had not yet crystallized. Notably, the Board did not implement any contingencies to address the fact that Mr. McKee may find alternative employment.

With the changes to the human rights system in 2008, things changed. The “complainant” became the “applicant” and future prospective lost wage orders, for one reason or another, became a thing of the past.  Frankly, I find this surprising given that the remedial principles of the Human Rights Code aim to restore applicants to the position they would have been in had they not experienced discrimination, along with the fact that many applicants are still unemployed and experiencing wage loss on the day of hearing and into the future. There appears to be two primary reasons why future prospective lost wage orders are remote (or perhaps “non-existent” is the more appropriate term):

  1. The Human Rights Tribunal of Ontario fears speculation and recognizes that the Tribunal cannot assess an applicant’s mitigation efforts post-hearing, and
  2. Applicants rarely seek future lost wage damages, perhaps because they are so rarely ordered.
HRTO Jurisprudence Considering Future Prospective Lost Wages

In order to understand the Tribunal’s reluctance to order future lost wages, it is helpful to briefly review two recent decisions addressing the issue.

Loutrianakis v. Clair de Lune, 2010 HRTO 2137

In this case the Tribunal found that the respondent terminated the applicant because of her disability and stated that the “applicant is entitled to compensation for the wages she lost because of the respondent’s actions”. The applicant sought “her prospective wage loss up to the point in time at which it would be reasonable to expect the applicant would have found alternate employment.” Notwithstanding a finding discrimination and recognition of the remedial principles of the Code, Vice-Chair Sheri Price declined to order prospective future lost wages, stating at paragraph 65:

I decline, however, to order the respondent to compensate the applicant for the prospective wage loss she expected to continue to incur following the hearing. Although the applicant invited me to pick some date in the future at which point it would be reasonable to expect her to have found other employment, I find that I lack a sufficient evidentiary or other basis upon which to grant this remedial request.

With this very basic explanation, the applicant was denied future lost wages notwithstanding that she may ultimately be unemployed and experience wage loss well into the future.

Pilon v. Cornwall (City), 2012 HRTO 177

In this decision, the Tribunal found that the respondent had discriminated against the applicant on the basis of disability.  The applicant sought lost wages to the age of fifty-five, when she could have retired. Vice-Chair David Muir declined to order future lost wages, stating at paragraph 14:

As noted by the respondent, the Tribunal has not yet made an order of post-hearing wage loss. In my view such an award would be extraordinary and not likely to be made except in exceptional circumstances. One reason for this conclusion flows from my view that the obligation of the applicant to mitigate his or her damages runs together with a claim to damages for lost wages. It is obviously impossible to assess an applicant’s ongoing efforts to mitigate a wage loss post hearing. As such, any award of post-hearing damages for lost wages would be almost entirely speculative in the majority of cases. [underlining added]

The Tribunal’s concern, in my opinion, is without merit. Other decision-makers are able to deal with the speculative nature of future lost wages awards and the duty to mitigate. For example, in Adjemian v. Brook Crompton North America,[ii] a 2008 summary judgment decision of Justice Perell, the Court ordered damages for payment in lieu of notice for a period which concluded after the trial date. Rather than refuse to order these damages or shy away from the summary judgment process, Justice Perell stated at paragraph 28:

Although Ms. Adjemian is entitled to judgment, her judgment has come so quickly that it comes during the period in which she continues to have an obligation to mitigate. In these circumstances, the court can impose a trust requiring her to account for any mitigatory earnings…

Fear of Speculation Trumps the “Make Whole” Remedial Principles of the Code

In fairness, the Tribunal’s concerns have some merit. Yes it is difficult to assess an applicant’s job search efforts after the hearing. And yes the damages are “speculative” – the applicant could find new work tomorrow or pass away. Are these factors enough for the Tribunal to justifiably conclude that future lost wages would not be ordered except in the most “exceptional circumstances”?

In assessing the proper balance, the Tribunal fails to recognize that the speculative nature of these damages is also a significant concern for applicants. An applicant who has been terminated for discriminatory reasons and is still without a job come the hearing date has significant reason for “concern”.  Applicants are often in financially-tenuous situations, have families and dependents to support and good reason to question where and when they will get their next paycheque. Perhaps most important in the analysis is the reason why future employment and the quantum of lost wages is speculative – it is because the respondent has violated the applicant’s rights under the Code!

In fact, these factors were explicitly recognized by the Tribunal when dealing with another “speculative” area of loss – opportunity loss. In Chaudry v. Choice Taxi of Cornwall Inc.,[iii] Vice-Chair Leslie Reaume considered whether to order an applicant to become a shareholder as opportunity loss. In grappling with issues very similar to those raised in the two cases already addressed, the Tribunal stated:

…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…After April 2007, there was no reasonable or serious possibility that the applicant would ever have been offered the opportunity to become a shareholder.

Vice-Chair Reaume was uncertain as to whether the applicant would have become a shareholder but for the discrimination. It was “speculative”. Notwithstanding that uncertainty however the Tribunal correctly understood why the Applicant was in that position, ordered the applicant the opportunity to become a shareholder, and remained seized to deal with issues arising from that order, stating, inter alia:

…[the uncertainty] exists because of the conduct of the respondents and not the qualifications of the applicant…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… [underlining added]

Practical Realities of the Tribunal’s Refusal to Order Future Prospective Lost Wages

The unfortunate reality is that the refusal to order future prospective lost wages ensures that the Tribunal cannot place an applicant as reasonably as possible into the position he or she would have been in had the discrimination not occurred. Rather, the Tribunal is hinging the “make whole” principles on a superficial and tenuous factor – the hearing date. This carries undesired practical realities.

Respondents will inevitably be motivated to complete the hearing as quickly as possible, knowing that applicants’ wage loss ceases after the matter is concluded. We may see a decline in Tribunal-offered mediations. Why would a respondent mediate after all, when mediation extends the time to a hearing by approximately three to five months? Applicants on the other hand are motivated to extend the length of time to the hearing, which may motivate them to seek otherwise unnecessary adjournments or raise preliminary issues which will likely delay the hearing on the merits.

Hearing dates are mainly dependent on the Tribunal’s case load at any given time and the schedules of legal counsel. It is inherently unfair to cap an applicant’s remedy on this unprincipled and superficial basis.

Is there Hope for the Future?

While extensive jurisprudence has made it clear that the Tribunal does not apply the analysis used at common law in wrongful dismissal actions (character of employment, length of service, age and availability of similar work having regard to experience, training and qualifications of the employee), does that mean there isn’t anything that can be adopted from the common law approach when assessing future prospective lost wages?

Yes, the theoretical underpinning of the two damages are different – wrongful dismissal damages arise out of contract (an implied term in the employment contract), whereas human rights lost wage damages are compensatory. While the reasonable notice analysis does not apply in the human rights context, these concepts could very well apply to a future lost wage analysis beyond the date of the hearing. After all, isn’t that analysis primarily concerned with awarding a period of time that is reasonable in the circumstances for an employee to find alternative employment. Moreover, the reasonable notice period is often assessed prior to the completion of that period, making it, yes, get ready for it – speculative! Mitigation efforts are assessed at the time of trial. Courts do not simply cap the notice period because there is a speculative portion after trial, as we’ve already seen in Adjemian. There are other, more just ways to deal with issues that may arise.

There is some indication the Tribunal may be warming up to these damages (although Pilon, a later decision, seemingly suggests otherwise). In 2010, Vice-Chair Judith Keene released a well written and reasoned decision – McLean v. DY 4 Systems.[iv] In this decision the applicant sought prospective future lost wages and Vice-Chair Keene considered the following factors in determining the issue:

  • There were no performance concerns warranting termination;
  • The applicant enjoyed her work and had no plans to resign;
  • The applicant would have retired when she reached the age of 65;
  • The respondent was in a fortunate position, doing well and hiring more staff;
  • The applicant had a high school education, no “paper qualifications” and developed her skills entirely on the job, and
  • Given the applicant’s “significant disabilities” it would be difficult to find a job (supported by the fact that she was unable to find a job to the date of the hearing).

Rather than dismissing these damages as speculative, Vice-Chair Keene correctly assessed whether the applicant was likely to incur future prospective lost wages by looking at the employment relationship and the likelihood that the employee would have remained employed ‘but for’ the discrimination. The Tribunal also dealt with the risk of an employee finding new employment over a period of time, stating at paragraph 96:

If the applicant finds employment on a short-term or permanent basis, corresponding deductions can be made in the relevant 15-month timeframe between the date of the hearing and the date the applicant would have retired in any event…

One decision in the past two decades is not promising, but McLean offers hope for the future.

What Can Applicant Counsel Do?

Ask for prospective future lost wages. Cite McLean and build off the glimmer of hope Vice-Chair Keene has offered. The Tribunal’s reluctance to order prospective future wage loss is only part of the problem. Another, perhaps more important problem, is that these damages are rarely sought by applicants. Future wage loss (like reinstatement orders) are rarely requested and so rarely ordered. In turn, practitioners assume that future lost wage orders (like reinstatement) are rare and unrealistic. It is time for applicant-side legal counsel to request these damages and ensure that applicants have the opportunity to truly be placed in the position they would have been in “but for” discrimination – even after the hearing date.

End Notes

[i] (1992) 17 C.H.R.R. D/79 (Ont. Bd.Inq.)

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