G Mitigation & Human Rights

G Mitigation & Human Rights

Common Law Rule & Human Rights

As a general rule, it would appear that the complainant remains under an obligation to take reasonable steps to seek out comparable employment, as is the case in common law wrongful dismissal actions. There are some inroads suggested to this principle, as discussed below, which reflect the considerable discretion given to the tribunal and that the human rights process is not required to march lock step with common law principles.¹ The onus of proof will be upon the employer.²

Two Step Onus

The common law has defined the onus on the employer as twofold. The employer must show a breach of the obligation and secondly, must then introduce affirmative evidence to show that had the employee taken reasonable steps to seek employment, success likely would have followed.³ This has been the general direction of human rights decisions.⁴

Principled Discretion

This being said, the path has not been straightforward. The issue of “principled discretion” and the interpretation of the B.C. statute allowed the tribunal to order “all, or a part” of the lost wages⁵ without regard to Red Deer and Evans.⁶

In human rights cases, different considerations in assessing the mitigation obligation may apply.⁷

For example, a tribunal should take into consideration the after-effects of exposure to a poisoned work environment in looking at the duty to mitigate.⁸ Should this plea be made, appropriate supportive medical evidence should be provided.⁹This onus is upon the applicant, that is, to explain why there has been a failure to mitigate by proper evidence.¹⁰ Medical evidence, no doubt, will be preferred, but not required, as noted by the Supreme Court of Canada in Saadati v Moorhead.

How far down the field this analysis pushes the ball is highly debatable. At the end of the day, it would appear there has been no dramatic revision to the traditional view that mitigation is the order of the day.

A fair synthesis may be that the Tribunal will look to mitigation as the usual requirement but has considerable latitude in its discretion¹¹ as to whether this obligation has been fulfilled and is not bound by traditional common law concepts.¹²

Consequences of Failure to Mitigate Finding

Where there has been a finding of a failure to mitigate, the Tribunal may assess what a fair time period to find other employment would have been and use this conclusion for the assessment of the income loss.¹³ As noted in the Remedy Chapter 2, subsection 4, many decisions have denied a lost income claim due the failure to mitigate.

Offer to Return to Work

Occasionally arguments may arise by which the employer may assert that the applicant had an obligation to return to work based on an offer made of comparable employment following dismissal or an alleged dismissal.

Many have said that the leading case on the mitigation obligation in an employment context is the 2008 Supreme Court of Canada decision in Evans v Teamsters Local 180. In reality it added only one new wrinkle. The fundamental principles of mitigation were in place years before this decision and repeated once again.

It did deal with the new concept of considering the obligation of a dismissed employee to return to work at the request of the same employer following a termination. This was really the only new principle.

The Court determined that in certain circumstances, it will be necessary for the dismissed employee to return to work. This being said, it remains the employer’s onus to show a failure to mitigate in this circumstance.

The analysis is contextual and multi-factored. The critical issue is that the employee not be obliged to mitigate by working in “an atmosphere of hostility, embarrassment or humiliation”, a standard which is to be reviewed objectively. This being stated, the non-tangible elements including “work atmosphere, stigma and loss of dignity” in addition to the tangible elements are to be included in the evaluation.

Evans in Human Rights Cases

This issue has been reviewed in two important human rights cases to date.

In one case¹⁴ in which the applicant had been subjected to sexual harassment and gender violations, the employer, a school board had agreed to re-employ the applicant on terms which the complainant found unacceptable. The applicant was penalized for her refusal to be re-employed, a decision which was reversed on first review.¹⁵

Upon further review by the Court of Appeal, this court determined that the Tribunal was not mandated to apply the common law concept of mitigation in assessing the income loss and allowed the tribunal decision to stand.

The Court of Appeal concluded that the Tribunal’s decision, whether or not it chose to apply Evans or not, was a discretionary one and could not be challenged on judicial review. In addition the appellate court found that the chambers judge applied the wrong test of correctness and should have used the test of reasonableness and afforded the Tribunal deference.

Long before the Evans decision, the human rights Board of Inquiry came to the same conclusion. A maintenance mechanic due to his refusal to work on the Sabbath and was ordered to be reinstated. The employer had offered to him alternative employment as a “springer” or “packer” following the dispute. The “springer” position was seen to be overly physically demanding, but the “packer” position was a job Rand could have performed but chose not to, as it was a Grade 5 level position, compared to that of the mechanic which was a Grade 17 and paid 42% less than the more senior position. The packer position however was accompanied by production bonuses which may have allowed Rand an income which was approximate to his prior income level or even exceeded it, as was found.

The Board found that Rand could have worked in this position without waiving his right under the Code to seek the remedy in question. The Board concluded that Rand ought to have accepted this position until the hearing took place or until such time that he found other employment. The claim for lost income was denied.¹⁶

Mitigation Expenses

Generally reasonably incurred mitigation expenses¹⁷ will be awarded. Additional travel expenses for new employment,¹⁸ and also moving expenses.¹⁹

Workers’ Compensation Benefits

The issue of workers compensation legislation and its impact on the human rights process is contentious. It is certainly arguable that a person who suffers emotional trauma due to an event of sexual harassment is within the protections offered by the provincial legislation and hence entitled to benefits provide by the Act where the employer is covered by this legislation.

This issue is discussed in detail in the following in the Civil Remedies section.

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1. The Ontario Court of Appeal in Piazza v Airport Taxi(1989) 69 OR (2d) 281 confirmed the obligation of mitigation in a human rights case, as referenced in MacTavish v PEI, a decision of the Supreme Court of Prince Edward Island
2. Payette v Alarm Guard Services (Dimovski)
3. Red Deer College v. Michaels, 1975 CanLII 15 (SCC), [1976] 2 S.C.R. 324); Evans v Teamsters
4. Matheson v Presbytery of Prince Edward Island,
5. The B.C. Supreme Court decision in McIntosh v Metro Aluminum Products sat on a judicial review and upheld a Human Rights Tribunal decision which did not apply the onus as in Red Deer and Evans.
6. This was similar to the views of the FCA in Chopra v Canada.
7. The Alberta Court of Appeal in Walsh v Mobil Oil
8. Holness v South Alder Farms Ltd (1999) CHRR Doc. 99-019 (BCHRT)
9. Payette v Alarm Guard Services (Dimovksi)
10. Turner v 507638 Ontario Ltd (Renton) Heintz v. Christian Horizons, 2008 HRTO 22 (CanLII), 2008 HRTO 22 (CanLII) at para. 265);  Pchelkina v. Tomsons, 2007 HRTO 42 (CanLII), 2007 HRTO 42 (CanLII) at para. 26.
11. The duty to mitigate is to act reasonably. It is clear that the court will consider the individual circumstances of the complainant and should she be troubled by physical or emotional ailments making it difficult for her to seek employment, this should not be weighed against her, as was confirmed by the Alberta Court of Appeal in Walsh v Mobil; Dube v CTS Career College, a Tribunal decision in August of 2010 did consider the impact of the emotional trauma suffered by the complainant. It saw this as a factor in assessing the reasonableness of the complainant’s job search efforts; Almeida v. Chubb Fire Security Division (1984), 5 C.H.R.R. D/2104 (Ont. Bd. Inq.)
12. To the same end is the conclusion reached by the British Columbia the Court of Appeal discussed subsequently on the application of the Evans concept in J.J. v Coquitlam School Board; McIntosh v. Metro Aluminum Products Ltd., 2012 BCSC 345 (CanLII), 2012 BCSC 345 at para. 51 and 52
13. Adams v Knoll North America
14. J.J. v Coquitlam School Board
15. Mr. Justice Leask, set aside by the Court of Appeal which stated: The tribunal had failed to assess the critical factor − at the forefront of the inquiry into what is reasonable − must be whether or not the employee would be returning to an atmosphere of hostility, embarrassment, or humiliation. The court concluded that “The question here is whether these conditions are designed to mitigate some of the humiliation and embarrassment which would otherwise result from returning to work.”The tribunal ought to have looked to the question of “whether reasonable person would have returned to a workplace based on the objective working conditions; specifically, the presence or absence of hostile, humiliating or embarrassing work. The Tribunal, in focusing only on whether J.J. herself was at one time willing to return, conducted a subjective analysis. This was an error.”
16. Rand and Canadian Union of Industrial Employees v Sealy Eastern Limited, Upholstery Division (Cumming) 3 CHRR D/ 938. This may have been a peculiarity of the unionized workplace but it does open an employer argument when it voluntarily may offer such a concession.
17. in DeSousa v Gauthier (DeGuire)
18. Xu v Ottawa Hospital (Hewat)
19. Abouchar v Metropolitan Toronto School Board (1999) 35 CHRR D/ 175 (Laird), and similarly in Moffatt v Kinark Child and Family Services (Laird) and also in Sandford v Koop (Gottheil)