Archive for the ‘Human Rights Tribunal of Ontario’ Category

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The Ontario Human Rights Code’s preamble states its purpose, in part, is “the creation of a climate of understanding and mutual respect for the dignity and worth of each person”. The Code is not intended to “punish” a person or company that engages in discrimination. Rather it is remedial or restorative, aiming to compensate the person who has experienced discrimination. The overriding goal of the Code is ultimately the elimination of discrimination within the Province of Ontario.

When an individual who believes she or he has experienced discrimination is completing an application, it is important to carefully consider who will be named as respondents. It is important to applicants that the perpetrators of discrimination are held to account – whether they are individual or an organization. A finding of discrimination will often provide validation to an applicant and re-affirm his or her value as a person, as well as their dignity and sense of belonging. In these cases, individuals who are alleged to have engaged in discrimination should be named along with the company.

Naming Individual Respondents – Two Scenarios

 

Over the past few years, a troubling trend has emerged in the Human Rights Tribunal of Ontario’s case law relating to the naming and removal of individual respondents. To fully flush this out, it is important to distinguish between two very different scenarios:

  1. Betty files an application against her employer, a regional municipality. In addition to naming the municipality as a respondent, she also names the mayor, the deputy mayor and the COO – all of whom were not involved personally with the facts that give rise to her human rights application.
  1. John files an application against his employer, a regional municipality, and also against his immediate supervisor who regularly made inappropriate remarks and slurs toward John because of his race.

Scenario one above happens all too often and is a legitimate concern. Naming individuals who have nothing to do with the facts of an application unnecessarily adds to the complexity of a proceeding and is inappropriate.

Scenario two, however, is markedly different. John should be permitted to pursue an application against his immediate supervisor – the individual who engaged in conduct that was demeaning and derogatory toward John on the basis of his race. Of course, the employer is also responsible for John’s conduct by virtue of section 46.3 of the Code which imputes liability to a corporation for the employee’s actions and omissions done in the course of his employment.

The Tribunal Goes Too Far to Remedy Inappropriate Naming of Individual Respondents

 

In an effort to counter the inappropriate naming of individual respondents (such as in scenario 1, above), the Tribunal has gone too far. Its jurisprudence now encroaches into the territory of appropriately named individual respondents. Consider the following:

In Delargie v. St. Joseph’s Healthcare Hamilton (2015),[i] Vice-Chair Alison Renton considered a request from the respondents to remove an individual respondent who was named along with the organizational respondent. The Tribunal specifically noted that the individual respondent’s conduct was “central to this case”; however, it removed the individual respondent nonetheless, stating at paragraph 8:

In the circumstances of this case, the individual conduct of the personal respondent is central to this case. While the organizational respondent has not explicitly stated that it would assume liability for the personal respondent in the event that Code violations were found, a joint Response was filed on behalf of both respondents, and the respondents submit both that the personal respondent was not acting outside the scope of her authority and that the factors set out in Persaud, above, support their request to remove the personal respondent. Implicitly the organizational respondent has represented that it will assume liability for the personal respondent’s actions. [bolding added]

The reasoning of the Tribunal in Delargie appears to be – the individual respondent is alleged to have engaged in actions that on their own may be a violation of the Code; however there is an organization  with the financial capacity to assume liability for the employee’s actions, such that we should remove the individual who may have engaged in discriminatory conduct. What happened to accountability? What message does it send when the Tribunal will simply release individuals accused of discrimination because they work for a company that has money? Is the overarching aim of the Code being furthered by this practice? When did section 46.3 of the Code (which imputes liability on the employer for the employee’s actions) become sufficient to release the individual employee?

In Breau v. Halton (Regional Municipality) (2016),[ii] the Applicant raised these principles when opposing a request to remove the individual respondents. Specifically, in opposition to the request, the Applicant stated:

The Code is remedial and restorative – it is not punitive. The Applicant is not requesting that the personal respondents remain a part of the Application for punitive reasons, but rather because the Applicant, and society at large, have an interest in ensuring that remedies are ordered against perpetrators of discrimination in order to achieve one of the primary purposes of the Code, the elimination of discrimination…

There is a troubling trend appearing recently in Tribunal jurisprudence that appears to simply release personal respondents should the corporate respondent accept liability on their behalf and agree to cover any remedy ordered. In the Tribunal’s search for efficiency, it seemingly, in some cases, fails to give credence to the remedial nature of the Code and something is lost in that process. Individuals should be held to account for their independent, discriminatory actions. In this case, the personal respondents should not be removed.

Again, the Tribunal removed the individual respondents, stating at paragraph 14:

…There is an organization respondent (the Regional Municipality of Halton) in the proceeding that is alleged to be liable for the same alleged conduct as them, no issue has been raised to the organization respondent’s deemed or vicarious liability for their alleged conduct, there is no issue as to the ability of the organization respondent to respond to or remedy any infringements of the Code, and no real prejudice would be caused to the applicant or any other party as a result of removing them as respondents to the Application. The reasons that the applicant raised to continue the proceeding against the [individual respondents] have some merit, but I do not agree that they are sufficiently compelling to continue the proceeding against them…

If we hope to reduce discrimination in Ontario, holding individual perpetrators of discrimination accountable for their actions is important. If we hope to provide redress to those who have experienced discrimination, allowing them to advance their claim against each party who perpetrated the discrimination is important. If the perpetrator simply becomes a witness to the process, something meaningful for an applicant is lost.

I recognize the Tribunal wishes to eliminate the number of respondents to ensure the hearing does not become unnecessarily complex. Proceeding against the individuals who are alleged to have individually perpetrated the discrimination, alongside the organizational respondent if there is one, is necessary if we hope to prevent discrimination and provide meaningful redress.

Another practical consideration is that organizational respondents may go bankrupt. Without an individual respondent, some applicants may find themselves without any potential for compensation.

Steps in the Right Direction?

 

The same arguments put forward in Delargie were raised before the Tribunal recently in Nakazi v. Bowland Dental Laboratories (2017).[iii] In an interim decision, Vice-Chair Laurie Letheren refused to remove the individual respondent, stating:

Although there are two corporate respondents to this Application, there remains a possibility that the Tribunal could find that [the individual respondent] was personally liable for his own conduct which amounted to a breach of the Code…it remains potentially open to the Tribunal to make findings of liability and require monetary remedies specifically from the personal respondents for their actions if it was to find that these actions were discriminatory.[iv]

This ruling may seem narrow, in that the Tribunal would only retain an individual respondent where there is a possibility that liability may fall outside of the vicarious liability provision in section 46.3 of the Code. I do not believe this is what the adjudicator in this decision meant to imply because she then went out to cite the Divisional Court in  Human Rights Commission v. Farris (2012),[v] where that Court, stated:

The fact that a corporate respondent may also be jointly and severally liable for the conduct of employees is not a basis to insulate the employees from personal liability…The purpose of s. 46.3 of the Code is to confirm the parallel statutory liability of corporations for the actions of their employees, not to replace it.

The Divisional Court goes on to explicitly state in Farris that one of the “fundamental principles of human rights law” is:

…a finding of corporate liability is not meant to act as a shield against a finding of individual liability where the acts of the individual constitute a violation of the Code.

Unfortunately, to date, the Divisional Court’s guidance on this issue has not been consistently followed by the Tribunal.

Conclusion

 
Hopefully, we are seeing a reversal of the Tribunal’s trend to remove individual respondents where an organization is also named as a respondent.

Future applicants to the Tribunal should give thought to whether individuals have personally engaged in behaviour which could be a violation of the Code – if they have, they should be named as respondents. The inappropriate naming of chief executive officers, mayors, chiefs of police, etc, who do not have personal involvement in the facts giving rise to the application, should be avoided. It is time to bring a principled approach back to who will be held to account for discrimination.


[i] Delargie v. St. Joseph’s Healthcare Hamilton, 2015 HRTO 1329

[ii] Breau v. Halton (Regional Municipality), 2016 HRTO 1055

[iii] Nakazi v. Bowland Dental Laboratories, 2017 HRTO 1204

[iv] It should be noted that there were also concerns about the ability of one of the organizational respondents to satisfy a remedy that may be ordered.

[v] Human Rights Commission v. Farris, 2012 ONSC 3876 (Div. Ct.)

Remedy search

A couple of days ago I wrote a paper for the Ontario Bar Association’s Constitutional, Civil Liberties and Human Rights Section, posted here. The article is re-posted herein. It explores the concept of damages in lieu of reinstatement in the context of the Human Rights Tribunal of Ontario. Since the change to the direct access model in 2008, the Tribunal has never ordered these damages previously, and the failure to award damages in lieu of reinstatement where an employment relationship is not viable compounds the harm experienced by victims of discrimination. This is particular so where the relationship has broken down through no fault of the applicant.

Background: Remedial Principles of Ontario Human Rights Legislation

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One objective of the Ontario Human Rights Code is the elimination of discrimination. To achieve this objective, the Ontario Legislature has given the Human Rights Tribunal of Ontario broad remedial powers to order compensation for loss arising out of the infringement (including lost wages and general damages to compensate for injury to dignity, feelings and self-respect), non-monetary restitution, or “anything that, in the opinion of the Tribunal, the party ought to do to promote compliance” with the Code.[i]

Code damages are not intended to punish an offending party. The intention of the offending party is not a relevant factor in determining the appropriate remedy at the Tribunal.[ii] Rather, the Code is remedial and damages are designed to put the applicant into a position she or he would have been in but for the discrimination experienced.[iii] The ultimate goal is to make the applicant “whole” to the extent reasonably possible.[iv]

The Tribunal’s remedial power is not limited by “proportionality”. Causation is the appropriate guiding principle applicable to human rights remedies.[v] Applicants should only be compensated for the harm experienced from discrimination that is caused by the respondent.

Reinstatement as a Presumptive Remedy

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One potential remedy available to make the applicant “whole” is reinstatement. I often hear practitioners claim that reinstatement is an “exceptional remedy” or “rarely awarded”. This is misleading. Applicants rarely request reinstatement. When it is requested, it is often awarded.[vi] In addressing reinstatement as a viable remedy, the Supreme Court of Canada stated in McKinney v. University of Guelph:

It should be noted that the rights of the appellants which have been infringed pertain to their dignity and sense of self-worth and self-esteem as valued members of the community, values which are at the very centre of the Charter. It would be insufficient, in my view, to make any order which does not seek to redress the harm which flows from the violations of this interest. Reinstatement is clearly the most effective way of righting the wrong that has been caused…[vii]

Reinstatement is often the only remedy that will truly put an applicant into the position she or he would have been in had the discrimination not occurred. Reinstatement, when sought, is only refused by the Tribunal when there is a reason not to order it. In the past the Tribunal has declined to order reinstatement where it has found that the applicant would have been terminated in any event even if the discrimination had not occurred,[viii] or there is animosity between the parties and the employment relationship is no longer viable.[ix] Given that reinstatement is often ordered when sought, and only declined where there is reason to decline it, it seems reinstatement may be more appropriately considered the “presumptive remedy” rather than an “exceptional remedy”.

Damages in Lieu of Reinstatement? – The HRTO Fails to Appreciate the “Make Whole” Remedial Principles of the Code

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As mentioned above, there are relatively few cases where reinstatement is sought. While reinstatement is awarded when sought, there are a handful of cases where it is not awarded, and in these cases a troubling trend emerges – the Tribunal does not order damages ordered in lieu of reinstatement. In these cases, the prejudice of a non-viable employment relationship effectively falls upon applicants and respondents reap the benefit. I will highlight the issue through a brief example:

Joe, a sixty-three year old labourer, has worked for Discrimination Corporation (“DC”) for the past thirty-seven years. Two years ago DC hired a new general manager, who immediately identified DC’s aging workforce as an issue to be addressed. A voluntary retirement program was put into place and older workers were transitioned out of the workforce.

Joe, however, had spent the majority of his life at DC and declined participation in the voluntary retirement program. When it became clear Joe would not leave voluntarily, the new general manager resorted to other tactics. Comments were made to Joe about his age on a regular basis and he was assigned the most physically strenuous jobs in the factory. Not surprisingly, the strenuous jobs took their toll on Joe’s health and he now suffers from repetitive strain injuries to both wrists.

Joe knew that his employer was trying to force him out of the workplace. After months of negative comments and deteriorating health, Joe lost his temper and snapped at his general manager. His employment was immediately terminated for just cause.

Joe filed an application with the Tribunal alleging discrimination on the basis of his age. One and a half years later Joe’s hearing date arrives. By this time, he has exhausted his employment insurance benefits and has been unable to find work, despite applying to every position he came across. Joe is seeking reinstatement to DC Corporation.

The Tribunal finds that Joe was treated adversely and terminated solely as a result of his age. Under cross-examination, Joe admitted that he doesn’t like the general manager and would find it very difficult to work with him again in the future. The Tribunal finds that there is animosity between Joe and the general manager, and concludes that the employment relationship is no longer viable.[x] Lost wages are ordered to the date of the hearing, as well as $15,000.00 in general damages, but reinstatement is not. The Tribunal has refused to order wage loss following the date of the hearing.

It would be a stretch to claim Joe has been made “whole”. Joe is put into the position that he would have been in but for the discrimination to the date of the hearing, but he is now 64 years of age, disabled, un-employed and with no source of income. His chances of finding alternative employment are slim. Reinstatement would have given him the ability to continue to earn a living, but because Joe became resentful and lost his temper after nearly a year of discriminatory treatment and the fact that he no longer likes the general manager who repeatedly discriminated against him, the employment relationship is “not viable”. The Tribunal, quite inappropriately, follows its past decisions and refuses to order wage loss following the hearing date.[xi]

Is it fair that Joe’s story ends with reinstatement being declined? Let’s look at the case scenario above more closely. The employment relationship may not be viable. The reason for that however is that Joe’s manager targeted him for a year and Joe became resentful of the discrimination. Put another way, “but for” the discrimination Joe would not have become resentful and hurt, and the employment relationship would have been viable. Should DC benefit from the discriminatory campaign it undertook to eliminate Joe from the workplace? From a remedial perspective, should Joe suffer as a result of the discriminatory actions taken by DC? If so, that provides respondents with a clear incentive to engage in aggressive behaviours to bolster their position that the employment relationship is no longer viable (if they do so, reinstatement is less likely to be ordered when sought).

To prevent this result, where the Tribunal finds the employment relationship no longer viable through no fault of the applicant, the Tribunal ought to order damages to compensate the applicant for the fact that the discriminatory actions have resulted in animosity and an unsalvageable employment relationship.

In fairness, it may be that applicants don’t ask for damages in lieu of the right to reinstatement. When these damages are sought however, and hopefully they will be sought on a consistent basis by applicants moving forward, the Tribunal would be failing the remedial objectives of the Code in refusing to order these damages.

Framework for Ordering Damages in Lieu of Reinstatement

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The Human Rights Tribunal of Ontario has not substantially addressed damages in lieu of reinstatement. Other forums have made such awards and below are two cases, which could serve as examples for how the Tribunal may determine such damages in the future. In applying the Canada Labour Code, adjudicators have adopted the so-called “modern approach” to damages in lieu of reinstatement.  That approach, which will be highlighted below, may be appropriate, particularly since the remedial principles contained within the Canada Labour Code are similar those in the Ontario Human Rights Code.  

Section 242 of the Canada Labour Code provides for compensatory damages in the form of lost wages and reinstatement, as well as a catch-all equitable provision, which provides that an adjudicator can “do any other like thing that is equitable to require the employer to do in order to remedy or counteract any consequence of dismissal”.

In Taylor v. Exalta Transport Services Ltd.[xii], Adjudicator Williams-Whitt adopted the modern approach from a previous arbitral decision under the Canada Labour Code. The method is a simple formula, whereby the employee receives one and one half months’ pay for each year the complainant worked. In the human rights context, the employee’s length of employment was irrelevant, however the Tribunal could ultimately assess damages in lieu of the right to reinstatement in a similar manner as the Tribunal assesses general damages. The Tribunal avoided speculative future lost wages by ordering damages based on its assessment of a reasonable time period for the employee to find alternative work, taking into consideration the individual circumstances of the applicant.  While the Tribunal does not award common law damages, a reasonable assessment of what the damages may be is more appropriate than a flat-out refusal to make the applicant whole because of the fear of speculative damages.

As an alternative to the “modern approach”, a federal tribunal applied remedial principles to reach a damages award that it considered fair in the circumstances. In Turner v. Canada (Border Services Agency),[xiii] the Canadian Human Rights Tribunal found that Canada Border Services Agency discriminated against Turner on the basis of his age, race, colour and perceived disability (obesity), in depriving him of employment opportunities in two separate job competitions. Turner initially sought reinstatement, however at the remedy stage of the hearing, he withdrew his request and instead sought damages in lieu of the right to reinstatement. By the time of the remedy hearing, Turner was employed with Service Canada, earning approximately $13,059.57 per year. As damages in lieu of the reinstatement, the Tribunal ordered the difference in pay between the two jobs for a period of five years, totalling $65,297.85. While the Tribunal did not explain its reasons for choosing a five-year period, the decision nonetheless recognized the harm caused by the forfeiture of the claim to reinstatement.

Conclusion

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The ‘make whole’ remedial principles of the Ontario Human Rights Code ought to necessitate that where reinstatement is sought and not ordered, damages should be ordered in lieu in order to make the applicant whole to the extent reasonably possible. There are different ways to determine the quantum of these damages, but a straight refusal to order any remedy in this respect, is a failure to eliminate discrimination in Ontario and put an applicant into a position she or he would have been in but for the discrimination she or he has experienced. It also fails to recognize the extremely vulnerable circumstances of many applicants and the challenges they will face in obtaining alternative employment.

End Notes


[i] The Human Rights Tribunal of Ontario’s broad remedial powers are found at section 45.2 of the Code.

[ii] While intention is not relevant in determining an appropriate remedy for a violation of the Ontario Human Rights Code, it is relevant federally when determining the appropriate remedy for a contravention of the Canadian Human Rights Act, where section 53(3) provides that the Canadian Human Rights Tribunal may award up to $20,000.00 in additional compensation if the Tribunal finds that the respondent “has engaged in the discriminatory practice wilfully or recklessly”.

[iii] ADGA Group Consultants Inc. v. Lane (2008), 91 O.R. (3d) 694 at para 129 (Div. Ct.) at para 151.

[iv] Ontario Human Rights Commission v. Impact Interiors Inc., [1998] O.J. No. 2908 (Ont. C.A.) at para 2.

[v] Ibid. (ADGA) at para 151 where the Divisional Court states that damages must be “reasonably foreseeable”.

[vi] See British Columbia (Public Service Employee Relations Commission) v. British Columbia Government Service Employees’ Union, [1999] 3 S.C.R. 3 (“Meiorin”) at para 3, where the Supreme Court allowed an appeal and restored the arbitrator’s decision to reinstate an employee, Nilsson v. University of Prince Edward Island, [2013] P.E.I.H.R.B.I.D. No. 2 where the Board of Inquiry ordered a professor reinstated following a finding of age discrimination, Matheson v. Presbytery of Prince Edward Island and Others, [2007] P.E.I.H.R.B.I.D. No. 1 where the Board of Inquiry ordered reinstatement eleven years after the breach of the Human Rights Act had occurred, and, Fair v. Hamilton-Wentworth District School Board, 2013 HRTO 440 where the Tribunal ordered the applicant reinstated to an alternative position almost nine years following her termination.

[vii] McKinney v. University of Guelph, [1990] 3 S.C.R. 229 at para 341.

[viii] Pelletier v. Veolia Transportation, 2015 HRTO 323

[ix] Supra note vi (Fair) at para 17.

[x] It should be noted that there are cases opposing this line of reasoning. For instance, in Narraine v. Ford Motor Co., [1996] O.H.R.B.I.D. No. 43, the Board of Inquiry addressed the damaged working relationship, stating at paragraph 10: This type of reasoning has provoked discussion in human rights jurisprudence as well. One human rights tribunal initially refused to reinstate the complainant to her original position at the Secretary of State office in Regina because it found that the “reunion would be a recipe for disaster,” and that there was “too much bitterness between the parties to think that reinstatement of the complainant to her former job is workable”. [See Pitawanakwat v. Canada (Secretary of State) (1992), 19 C.H.R.R. D/110 (Can. Hum. Rts. Tribunal). This decision was overturned by the Federal Court, Trial Division which concluded that potential for future problmes did not justify a decision to refuse reinstatement, and that failing to grant full reinstatement could “minimize” and “enfeeble” the impact of human rights law. [See Pitawanakwat v. Canada (Attorney General) (1994), 21 C.H.R.R. D/355.

[xi] For a critique of the Human Rights Tribunal of Ontario’s refusal to order speculative future lost wages see my previous article located here https://ontariohumanrights.net/2015/07/09/speculate_damages/

[xii] Taylor v. Exalta Transport Services Ltd., [2009] C.L.A.D. No. 110 (Adjudicator Williams-Whitt)

[xiii] Turner v. Canada (Border Services Agency), [2015] C.H.R.D. No. 10 (Member Wallace Craig)

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.)