C Lost Income

C Lost Income

Origins of the Claim

A claim for “special damages” or lost income may arise in many ways. It may come from a direct termination due to a code violation, or due to a “poisoned work environment”, or as a lost opportunity claim when initial employment was declined, or as a general reprisal claim. In the latter case there is no necessity to prove that the substantive claim succeed on its merits.¹

There may also be a claim for a future income loss when reinstatement is not ordered or not requested.

Different Principle from Wrongful Dismissal

Many past cases have linked the length of the complainant’s employment history to the quantum of the lost income claim. This principle is incorrect. The purpose of the human rights remedy is to “make-whole”, that is, to restore the complainant to their position as it “would have been had the discriminatory [conduct] not occurred.² As the remedy is restitutional in nature, the length of employment and the “quality” of the position held are irrelevant factors in the assessment of the income loss.³

A good illustration of this principle is found in Impact Interiors. The complainant, Cindy Petersen, had been employed for two days, at which time she “quit” due to the sexually harassing conduct of the employer. The Board of Inquiry (Anand) ordered a lost wage claim of $17,272, which represented the difference between what she would have earned in her former job and what she actually earned from her last date of active employment to the date of the hearing, a time period of two year and eighteen weeks. The second complainant, Shirley Hom, was a student who had been employed for five days. She was awarded lost compensation from the date of last active employment on June 10 through to the date of her return to school on September 10, 1990.

Wrongful dismissal concepts are foreign to the determination of this income loss.⁴

The concept of foreseeability is not a relevant consideration when assessing income loss. ⁵ That is, the question of how long it may take for the applicant to have found other employment is not the question to be asked. This would be contrary to the basic principle of “restitutio in integrum”.⁶ In some cases it may be possible to assess the damage loss to the date of hearing and perhaps even beyond that date. ⁷

Foreseeability is limited to the issue of what type of compensation might be awarded, such as compensatory damages or loss of income. Once the loss of income is shown as foreseeable, the extent of such a claim is not governed by foreseeability. ⁸

There may be limits placed on the sum of lost income awarded. These restrictions are based on the need to show a causal link between the income loss and the human rights violation and secondly, the inherent discretion of the tribunal.⁹ This discretion must be exercised on a “principled basis”. The common example given is mitigation.¹⁰

(See summary)

But-For Test

The first test then to establish the causal link is the application of the “but-for” test. The issue may develop that there may be multiple causes, as noted. There could be a need to amend this test from “but-for” to “material contribution” to the risk. This has not been done, however, to date.¹¹

The Walsh case illustrates the application of this causal connection to find the damage claim. It was determined that the income loss, ¹² was caused by the conduct of the employer until 2000 at which other forces intervened to lead to the conclusion that the causal link was no longer present.

The very same situation had arisen in an Ontario case¹³ in which the applicant had been terminated due to a medical disability in October of 2001. His physician found him medically able to return to employment in February of 2002. A lost income claim had been sought to August 2002. The claim for lost income was allowed to June of 2002. The tribunal found that beyond that date, other factors had intervened to cause the income loss for which the employer could not be held responsible.

It was not apparent from the decision in the Walsh case if there was disability insurance coverage in place at the time the medical disability arose.

If not, it was arguable that the employer was responsible for the loss of the disability coverage for the entirety of the period of the medical disability. ¹⁴ One such foreseeable event have been an application for disability benefits, then the claim should follow against the employer for the full extent of such loss.

The common law looks to that which is reasonably foreseeable in the notice period, whereas the tribunal uses the “but-for” analysis to determine the loss. In the case of the claim for disability benefits, the two approaches are in harmony. The applications of the differing logics produce the same result. ¹⁵ The difference between the two lies in the eligible time for the claim to arise. The common law will use a notice period. The human rights case does not. The latter will use the time to the date of the hearing and arguably beyond.

Where reinstatement is not requested, the tribunal must assess what the complainant would have earned if the discrimination had not occurred. ¹⁶

Many past cases have deviated from the rules set by the Court of Appeal and set the lost income based on wrongful dismissal factors. ^{17 18} These decisions do not follow the make whole philosophy. They are not good law.

The modern view of the income loss is based on the claim made from the date of the event giving rise to the loss to the date of the hearing. The income loss will follow once the causal connection has been established. The continuum of the claim may then be subject to mitigation issues and other arguments.¹⁹

Intervening Factors to End or Adjust Income Loss

From the above principles comes the basic test. Were it not for the unfair dismissal, what would have events would have unfolded? In general terms, a loss of income could be caused by reprisal or poisoned work environment. This is not meant to be exhaustive. what would otherwise have happened to the complainant’s employment? Were there any intervening causes independent of the code violation which had contributed to the income loss for which the employer ought not to be accountable? This becomes the analysis.

The cases using the principled discretion analysis use as a presumption that once the “but-for” causal link has been met, the claim for lost income will continue until such time as an extraneous factor has intervened to cause its cessation or have had some form of adverse impact.

The employer must then introduce evidence to demonstrate that even given liability, the income loss would have ceased, or would have been negatively impacted, at some point in time following the creation of the cause of action.

The latter may include submissions such as that the applicant’s employment was doomed to be ended for extraneous reasons due to economic issues or a some such similar plea intended to illustrate that the “make whole” argument may not be as generous as claimed. Such was the successful argument that the income claim must cease when the business had closed.²⁰ Similarly an existing contract may show a firm end date of the employment relationship which must mark the end of the income loss.

One might expect that the applicant would then argue for additional compensation for expected common law and or statutory sums.²¹

Equally, the employer may argue that the employee had failed in a duty to mitigate which should influence the lost income award.

An example of the application of the “but-for” analysis, discounted by risk, is a case in which an income loss was awarded for a 30 month period. The time period claimed was 5.5 years to the date of the hearing. The discount to the lost income claim was based on “the contingencies” that the applicant would not have been able to work for this entire time period due to medical issues. ²² A similar view was taken by the Tribunal in determining the appropriate income loss for a case which took five and a half years to reach hearing. The claim was based on physical and mental issues.

The decision noted the “make whole” concept but declined to make any finding of fault on either party as to delay or even to assess whether it was systemic in awarding an income loss of 30 months.

A similar application of this but-for concept showed that had the applicant not been unfairly terminated, he would have been laid off in any event due to workplace redundancies and the claim was accordingly reduced.²³

The same view was taken in a case in which adverse treatment due to age was found but the tribunal, without deciding the issue as the damage hearing had yet to take place, made it clear that it had accepted the employer argument that the applicant’s employment was in genuine jeopardy and he would have been terminated in any event.²⁴

An RCMP cadet who was terminated unfairly during the training period was awarded an income loss from January 2000 to the date of hearing in April of 2008, subject to a total 8% discount to represent the risk of the applicant not graduating and also usual attrition rates. ²⁵ A finding of a failure to mitigate was found which reduced the award by the average industrial wage. The lost income award was increased to reflect a likely promotion to corporal after 7 years. ²⁶ At the second hearing to re-visit the income loss, no further loss was awarded beyond the 2 year and 12 week period. (“grace period”)

 In this case the decision of the first tribunal that the applicant²⁷ that there was a failure to mitigate was fatal to the continued income loss. The tribunal then looked for evidence to determine if it was the conduct of the employer that had a caused permanent damage to the ability of the complainant to work²⁸  and found none. For this reason, the income loss claim was set only to the end of the grace period.

In a fact situation in which the applicant was denied the right to complete medical testing, the tribunal found liability. The tribunal did agree that there was some uncertainty as to whether the applicant would have completed the testing process and remained employed, the respondent should bear such risk. The full claim was allowed as was reinstatement.²⁹

Issues such as the employer’s solvency and similar factors may be considered to limit the likelihood of the continuum of the income loss.³⁰

A further example ³¹of the exercise of such discretion was found in the context of an applicant, found to have been adversely treated due to the failure of the employer to accommodate his disability in 2007 and to allow a return to work. No reinstatement was sought. There was no evidence of mitigation offered. The applicant sought lost wages from the default date to the date of submissions on remedy in November of 2011, notwithstanding his retirement one year earlier. The Tribunal noted the extremes within which an order for lost wages may be made from (1) no lost wages due to the likelihood of a termination for non-discriminatory reasons to (2) a claim for lost income to the date of the hearing or beyond it.³² A three year award to the date of retirement was made, given the uncertainties of a successful return to work, influenced by that fact that the applicant had been medically unable to work for three years prior.³³

A recent decision of the B.C. Human Rights Tribunal allowed a substantial income loss of $264,000, after a discount by a risk factor of 20%, to account for other factors impacting the probability of the complainant’s ability to have remained actively employed. The time period of the lost income claim was 7 years and 4 months. ³⁴. The intervening factors were the anxieties caused by disputes over the applicant’s claims for short and long term disability insurance entitlements and the litigation process itself. The need for the reduction is remarkable, given that the cause presumably of the need for all three components was the adverse treatment suffered by the victim of the wrongdoing.

Impact of Reinstatement Order

 It would be expected that, apart from mitigation issues, ³⁵ or otherwise an application of “principled discretion”, an order of reinstatement would be accompanied by an award for lost income to the date of reinstatement, subject to the limiting arguments as noted above which negatively impacted the award.³⁶ Such was the case for a lost income award for an 8.5 year period from the date of dismissal to the date of hearing.³⁷

Similar awards have been made for a wage differential for approximately 8 years ³⁹ An award of salary arrears was also made of roughly 9 years not only to the applicant but also his spouse who had also been treated unfairly. ⁴⁰ An award of 2 years and 3 months lost income due to a medical discrimination complaint. ⁴¹ A potential lost income loss was set in one case at 10 years.⁴²

Future Income Loss

Tribunal Decisions

It is not contested that a human rights tribunal has the authority to make an award for a future income loss beyond the date of the hearing⁴³, even in the absence of a reinstatement request.⁴⁴ Such a prospective income loss of 15 months was made in an age discrimination case⁴⁵.

One decision noted that an issue with respect to the assessment of a future loss is that there is no control over the mitigation factor ⁴⁶ and for that reason it would only be made in “exceptional circumstances”. This is a questionable statement of  law. It is true that the assessment of a future loss is not mathematical. The difficulties inherent in the assessment of the claim should not, however, lead to a denial of the application of the concept. Such damage claims are common place in tort actions. The difficulty in assessing the likelihood of mitigated income should not be a barrier.

Other decisions have prudently considered the impact of other employment post-hearing and ruled accordingly. The Ontario Board of Inquiry made a similar contingent order for a prospective income loss, governed by the mitigation efforts of the applicant. ⁴⁷

A similar conclusion was reached in an unjust dismissal case under the Canada Labour Code, awarding a future income loss subject to the applicant reporting on his mitigation efforts.  ⁴⁸

A further option is to simply assess the likelihood of future alternate income and apply a discount to the sum sought as the full prospective loss.^{49 50}

These decisions demonstrate how a future income loss may be assessed. The remedy should not be ignored because of the possibility of such future income off-sets. The Canadian Human Rights Tribunal⁵¹ ordered that the first available position of a bridge patroler be awarded to the complainant in its decision of November 2001. The commencement date of the lost income award was May 31, 1997.

The award stated that failing such an offer of alternate employment, the total lost income was to be set at a 10 year period. The contingent prospective loss was hence set for a time period of six years and seven months. There was no issue addressed such as mitigation from other third party employment.

This being said, in the January 2021 decision of the B.C. Human Rights Tribunal, ⁵² also struggled with the concept of the award of a future income loss, stating that such awards are “highly speculative” and made only in the clearest of cases. The decision maker speculated on the ability to predict future events. This will always be a concern in the shaping of the award surely, but not a reason to be dissuaded from making one. Such an award should be made only in “extraordinary circumstances”, were the words of the Tribunal.

This should surely not be so. In this case, the Tribunal found the exception and did make the award, subject to the same 20% discount as for the past income award, through to age 63.

Arbitral Law

There is authority in an arbitral context to allow for a prospective income claim where reinstatement is not allowed as noted immediately below.^{53 54}

In an arbitration case in which the normal reflexive remedy of reinstatement was not allowed, the arbitrator instead allowed a future income loss of roughly two years to age 55. ⁵⁵ less any sums earned by the grievor in this period. As noted by the Divisional Court which upheld the award on this issue, the arbitrator correctly considered mitigation and other future contingencies.

Common Law

Common law cases founded in tort claims for what are essentially sexual harassment claims, albeit using the tort theory, often allow for a prospective income loss, as discussed elsewhere.

Loss of Hiring Opportunity

In circumstances where the applicant has been deprived of the opportunity to be hired, the Tribunal will conduct a review to determine if there was a reasonable possibility that the applicant would have been hired, save the adverse conduct and if so, it will then proceed to assess the degree of such probability.

In such a context, the decision maker will make an assessment of the “reasonable possibility” that the applicant would have been hired⁵⁶.This is a concept which is similar to how the prospective loss should be determined.

Both of the above decisions noted that there were two alternative approaches to this issue. One test was whether there was a “serious possibility” which must be established. The contrary view was to require that the applicant show that he would have been hired on a balance of probabilities⁵⁷⁵⁸ The issue of the correct test to be applied in the event of a denial of an opportunity, in this case a promotion was determined to be the lesser standard of a “serious possibility of success”, to which contingency risk factors were then applied⁵⁹.This standard was doubted by the Federal Court as correct, but the issue was not argued before it⁶⁰.

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.⁶¹.

Employment Contract With Severance Term

One would expect that an employment contract which set out sums to be paid or notice provided in the event of a termination would be of no consequence in a lost income assessment in a human rights context. Given the “but-for“ analysis, presumably the employment relationship would have continued and the termination provision in the contract would not be an issue⁶². In one case this position not even argued by the employer⁶³

The contract likely could be argued to support an argument of the inherent fragility of the employment relationship to buttress a submission that the make whole remedy should be limited due to subsequent events such as redundancy or other frailties, which the contract implicitly anticipated.

The decision did touch on the issue of the fragility of the relationship and suggested that the contract term was reflective of this and hence the lost income was not definitive.⁶⁴

The existence of the contractual relationship between the parties was found to be a factor in assessing the income loss in the one Alberta decision.⁶⁵ The applicant had been employed pursuant to a series of four fixed term contracts. There were occasional gaps in the continuum during which she continued to perform her regular duties. Approximately one year prior to the expiry of the last of these agreements, she was advised that there would be no further renewal, a decision which prompted her successful human rights application, based on age.

In assessing the lost income claim for the period of five years to the date of the award, the tribunal agreed that the existence of the contractual relationship was a factor to be considered in the damage assessment and reflected the inherent fragility of the employment relationship to discount the award by thirty percent.

Can Statutory Severance and/or Termination Pay be Claimed?

The suggestion has been made above, that in a fact situation where the employer argues that the “but-for” lost income claim should be reduced due to a planned closing or other event which would have inevitably brought about the permanent end of the working relationship, the employee should then receive fair additional sums for what would have been the statutory payment or the common law entitlement.

The difficulty with respect to this plea is that the tribunal has traditionally taken the position that it has no jurisdiction to award the statutory severance sum, absent direct discriminatory conduct which led to its denial.⁶⁶

The significance of the statutory claim would be emphatic where the employee found alternate employment quickly as the statutory sum is not reduced by mitigated income.

All this places the complainant in a difficult circumstance in the hypothetical situation as described above. There can be no complaint with the Ministry of Labour as there has been no termination. The employer’s argument that had the relationship been continued but-for the wrongdoing, and that there would have followed a termination as a redundancy or closing, must be seen to be connected to the initial discriminatory wrongdoing for the statutory sum to be ordered, given the state of the law. Clearly the statutory claim comes as a direct loss attributable to the adverse conduct and should be compensated. The path to recovery is an awkward one and is need of rebuilding.

A similar case arose from a human rights claim which was defended by a release argument. The applicant rebutted the release argument by the submission that the release failed to satisfy the statutory minimum and was thus enforceable.

The tribunal’s response to this submission was that it lacked jurisdiction to interpret this statute and hence it was obliged to uphold the release and dismiss the complaint.⁶⁷

The decision hence stated that in order to give the tribunal jurisdiction that the applicant would need to prove that the release was motivated by a human rights violation. It is bizarre that the tribunal cannot interpret the employment standards legislation even for a collateral purpose and not one intending to award financial compensation under this statute.

Should this be the law, the applicant would need to file a human rights complaint in a timely manner and then sue in the civil court for declaratory relief that the release is unenforceable, all of which seems to be a waste of legal energy to both sides, apart from an unnecessary use of judicial time.

The position that the tribunal has no jurisdiction to award the sums due under the provisions under the relevant employment standards act, absent a human rights violation and a rational causal connection does not make sense.

The ratio has not been expressed in the above cases but presumably the origin of the argument is that the tribunal is a creature of statute and derives its power from the statute.⁶⁸ The conclusion that the tribunal has no power to interpret the Employment Standards Act or for that matter, any other provincial or federal statute in the course of exercising its legitimate jurisdiction lacks logic.

The same view is taken by the tribunal with respect to the common law remedy. The tribunal takes the general view that it is unable to apply such relief.⁶⁹

In the example of the employer arguing that the “but-for” submission would mean that the applicant would have been terminated for economic redundancy after, for instance month four, it should then follow that the damage claim would include not only four months but also the statutory and common law claims that would have been allowed. Otherwise, the company has a direct incentive to terminate all staff for human rights remedies and agree to apply the but-for analysis.

The Supreme Court of Canada⁷⁰ had before it an issue as to whether the Social Benefits Tribunal had the jurisdiction to determine whether a provision of the operative statute, the Ontario Disability Support Program Act which denied benefits to those persons suffering from addiction, was in violation of the Human Rights Code.

The Tribunal itself had found it lacked jurisdiction, a decision affirmed by the Divisional Court. The Court of Appeal reversed in finding that the SBT did have such power, yet also concluded that the issue was better resolved by the Human Rights process.

The Supreme Court allowed the appeal, being in agreement with the substantive decision of the Court of Appeal, but concluded that its decision should stand and further that there was no reason to defer to the Human Rights Tribunal.

More to the issue at hand, however, the Supreme Court stated that tribunals created by statute which are given the power to make decisions of law are enabled hence to look beyond the governing legislation by which they are created to “apply the whole law to a matter properly before them”.

The majority decision did note that one factor in its decision was that the Human Rights Code was not confined in its interpretation to the Human Rights Tribunal under the Code.

This factor but supplemented the general principle that tribunals created by statute are not confined to the interpretation of only the enabling legislation:

The laudatory goals of the Code are not well served by reading in limitations to its application. It is settled law that statutory tribunals empowered to decide questions of law are presumed to have the power to look beyond their enabling statutes in order to apply the whole law to a matter properly in front of them. By applying this principle to the present appeal, it becomes clear that the SBT had the jurisdiction to consider the Code in determining whether the appellants were eligible for support pursuant to the ODSPA. At that point, the SBT had the responsibility of applying the Code in order to render a decision that reflected the whole law of the province.

Indeed, such is a presumption as stated by the Court:

The presumption that a tribunal can go beyond its enabling statute — unlike the presumption that a tribunal can pronounce on constitutional validity — exists because it is undesirable for a tribunal to limit itself to some of the law while shutting its eyes to the rest of the law. The law is not so easily compartmentalized that all relevant sources on a given issue can be found in the provisions of a tribunal’s enabling statute. Accordingly, to limit the tribunal’s ability to consider the whole law is to increase the probability that a tribunal will come to a misinformed conclusion. In turn, misinformed conclusions lead to inefficient appeals or, more unfortunately, the denial of justice.

This presumption, as noted in the decision, may be one which is contradicted by the enabling legislation:

Yet the power to decide questions of law will not always imply the power to apply legal principles beyond the tribunal’s enabling legislation. As noted above, statutory creatures are necessarily limited by the boundaries placed upon them by the legislature. Subject to its own constitutional constraints, a legislature may restrict the jurisdiction of its tribunals however it sees fit.

In the instance of the Human Rights Code that there are no such apparent restrictions and that the Tribunal should not be limited to interpreting solely its enabling legislation and indeed should apply “the whole law”.

It is for these reasons, that in the offered hypothetical, the complainant should receive payment of the statutory and common law sums, without duplication.

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1. Such was the decision in Morgan v Herman Miller (Debane) in which the reprisal claim resulted in a lost income claim of 14 months and the substantive claim was dismissed.
2. In Piazza v Airport Taxicab, (1985), (Ont. Bd. Inq.), var’d 24 O.A.C. 8 (Div. Ct.), rev’d 60 D.L.R. (4th) 759 (C.A.) , the Court of Appeal upheld the award of the Board of Inquiry (Zemans) award of 11 weeks’ lost income after 10 weeks of employment in the sum of $2,750. This sum represented the complainant’s period of unemployment following her termination. The Divisional Court had incorrectly reduced the damages for lost wages to $750.
3. In 1998 in OHRC v Impact Interiors, again in a reversal of a Divisional Court decision.
4. The Divisional Court revisited this issue of the claim for lost income in its 2005 decision in Smith v Ontario and again concluded that the principle of the damage assessment for lost income is one intended to be restorative in nature, one which does not involve wrongful dismissal considerations or for that matter any restriction as one which should be “reasonable”, the latter words being interpretative from this writer; Whitehead v. Servodyne Canada Ltd. (1987), 9 C.H.R.R. D/3897.
5. Canadian Human Rights Tribunal (Schulman) in Rinn and Russell v Keewatin Air Limited in June of 1988
6. The injured party should be put back into the position he or she would have enjoyed had the wrong not occurred, to the extent that money is capable of doing so, subject to the injured party’s obligation to take reasonable steps to mitigate his or her losses.
7. Canadian Human Rights Tribunal (Schulman) in Rinn and Russell v Keewatin Air Limited.
8. The Alberta Court of Appeal in Walsh v Mobil;  The Federal Court of Appeal in Chopra v Canada (Attorney General) 2007 FCA 268 at paras. 28 to 37, application for leave to the Supreme Court of Canada was dismissed.
9. As above.
10. The Federal Court of Appeal stated in Chopra that the Tribunal was not legally bound to apply the mitigation although it concluded that the Tribunal may nonetheless do so in the exercise of its discretion. In Tahmourpour v RCMP the Tribunal noted that in Chopra mitigation was a concept which the Tribunal was not mandated by law to apply, yet could apply in the application of its discretion. The Tribunal chose to do so and found that Mr. Tahmourpour had defaulted in this obligation.
11. The Alberta Court of Appeal in Walsh v Mobil
12. as found by the first level decision maker and upheld in the Court of Appeal.
13. Lane v AGDA (Mullan). The decision went to Divisional Court, but not on this issue.
14. In accordance with Prince v Eaton principles as was applied by the late Mr. Justice Echlin in Brito v Canac and confirmed in the Court of Appeal.
15. The issue of double-dipping and Sylvester is reviewed subsequently.
16. In the immediate case, Ms. Heintz obtained employment for a short time period after her last day of work and then enrolled in a training and placement program and attended a full-time information technology program for one year, from July 2001 to July 12, 2002. She testified that she was required to change her career path due to the extreme emotional anxiety she suffered due to the conduct of the respondent. A full lost income claim was awarded for the time period as noted, such being 21.5 months, less any sums received. The case was amended on appeal with respect to the public interest remedy.
17. The complainant in DeSousa v Gauthier (DeGuire), a 2002 decision, had claimed an income loss for a period of 56 weeks following her termination. She had been employed with the corporation for 8 months. The time period for the income loss was said to be “a reasonably foreseeable period”, in this case set at 15 weeks.
18. In Baylis-Flannery v DeWilde (Hendriks), a claim was allowed for lost income and also awarded an increase in the rate of pay which had been withheld as a reprisal. Although the words expressed in the decision speak of restitution as the principle of assessing the lost income claim, the period allowed was 4 weeks, apparently influenced by the length of employment of four months. It was noted that the date of termination was March 17, 2000 and that alternate employment was attained “sometime in the summer of 2000”.
19. Reflective of that which, it is submitted, the modern correct approach to a lost income claim is the decision of the Tribunal in the July 2013 case of Chittle v 1056263 Ontario (Keene); Norrenda v Primary Response (Keene)
20. Hughes v 1308581 Ontario Ltd. (business closed)
21. This subject is discussed below. Ironically, the law is that the tribunal has no authority to award statutory or common law claims.
22. Alberta Human Rights Tribunal in the March 2012 decision in Schulz v Lethbridge (McFetridge)
23. Canadian Human Rights Tribunal decision in Milano v Triple K (Mactavish)
24. Ontario Tribunal in Clennon v Toronto East General (Hart); An unsuccessful reconsideration motion followed.
25. CHRT Tahmourpour v RCMP.

26. This decision was reviewed and set aside by the Federal Court, which decision for the most part was, in turn set aside by the Federal Court of Appeal and a new hearing ordered. The main issue for the new hearing was the determination of the income loss beyond the first period of 2 years and 12 weeks.

27. This was the evidence used for the second hearing.
28. 31] Due to an administrative error, the employee did not make submissions to the second tribunal hearing on this issue. A subsequent judicial review application was unsuccessful. On the substantive issue of the wage loss beyond the grace period, Near J. concluded that there was no error in making the failure to mitigate finding. A further appeal of this decision was made on the procedural issue which failed.
29. Treane v City of Windsor (Sengupta)
30. Kooner-Rilcof v BNA Smart Payment B.C. HRT; Hughes v 1308581 Ontario Ltd. (business closed) , Milano v Triple K (staff reductions) Schulz v Lethbridge (medical ability to return to work) and Clennon v Toronto East General (termination due to take place). See also Morris v. British Columbia Railway Co. (2003), 46 C.H.R.R. D/162, 2003 BCHRT 14.
31. Backs v City of Ottawa (Muir)
32. McLean v. DY 4 Systems, 2010 HRTO 1107 (CanLII), 2010 HRTO 1107.
33. It is to be noted that, as discussed subsequently, the award was largely academic as the WSIB sums offset the wage loss
34. Francis v B.C. Minister of Justice #5
35. Mitigation is discussed elsewhere.
36. Hughes v 1308581 Ontario Ltd. (business closed) , Milano v Triple K (staff reductions) Schulz v Lethbridge (medical ability to return to work) and Clennon v Toronto East General (termination due to take place). See also Morris v. British Columbia Railway Co. (2003), 46 C.H.R.R. D/162, 2003 BCHRT 14.
37. Fair v Hamilton-Wentworth, upheld by the Divisional Court, and again by the Court of Appeal, although the lost income award was not specifically challenged. By the date of the Court of Appeal hearing, the lost income claim approximated 12 years.
39. and nine years.  ³⁸ The same conclusion was reached by the Canadian Human Rights Tribunal in Singh v Statistics Canada (Mactavish) in which the applicant was instated to a more senior position due to a finding of adverse treatment due to age and awarded the income differential from August 1989 to the date of instatement in November of 1998.
40. This was also the conclusion of the Board of Inquiry in McKinnon v Correctional Services #3 (Hubbard) in which the Board ordered that the complainant and his spouse each be instated to the rank of OM16 and receive appropriate salary arrears from the date of the initially unsuccessful application for such employment from March of 1989 to the date of the award in April of 1998.
41. [43] Treane v City of Windsor (Sengupta) ordered a lost income claim from September 2008 to the final day of the hearing in December of 2010.
42. The Canadian Human Rights Tribunal in McAvinn v Strait Bridge Crossing (Deschamps) made an order requiring that the first available position of a bridge patroller be awarded to the complainant in its decision of November 2001. The commencement date of the lost income award was May 31, 1997. The award stated that failing such an offer of alternate employment, the total lost income was to be set at a 10 year period. The contingent prospective loss was hence set for a time period of six years and seven months.
43. McLean v DY4 Systems (Keene)
44. It would be prudent to advance a claim for reinstatement to support a claim for a prospective income loss.
45. McKee v. Hayes-Dana Inc. (1992), 17 C.H.R.R. D/79. A second decision followed which has no impact on this issue at (19 CHRR D/511).
46. Pilon v Cornwall (Muir).
47. In the May 1976 decision of Rajput v Algoma UniversityCollege (Tarnopolsky). The complainant, a Sociology professor, had been given a terminal contract by the university for the academic year running from July 1, 1974 to June 30, 1975. A subsequent vacancy was advertised for a similar position in February of 1975, to which Dr. Rajput applied. It was found that he was not successful in this application due to racial discrimination. Reinstatement was not ordered due to the impact of such an order on innocent third parties. An order of compensation was made for the next academic year was made as a prospective loss of income instead, dependent upon the attempts made by the complainant to seek alternative income in this time period internally and externally.
48. In Mathur v Bank of Nova Scotia (Armstrong), in which the adjudicator determined that reinstatement was not an appropriate remedy and hence awarded compensation through to Mathur’s retirement age, albeit on terms requiring Mathur to report on his mitigation efforts during the prospective period from the date of the award of May 2, 2002 through to the date of retirement of July 22, 2003.
49. City of Calgary vs Canadian Union of Public Employees, Local 38. There remained the issue as to when MP might in the future be able to return to work. The minimum time period from the date of the decision was accepted by the panel as being two years into the future. The maximum period was nine years, this also being the date when she would be eligible to receive retirement benefits. The panel concluded a fair date to use for a future income loss would be based on a likely return to work date of July 1, 2018. The date of the decision was December 1, 2013. The future income loss was hence established to be $512,149, which was reduced by a 10% risk factor and a discounted rate for a present payment of a future income stream of 2.25%.
50. Greater Toronto Airports Authority v PSCA Local 0004 on a judicial review application of the arbitral decision of Owen Shime, Q.C. The court agreed that the future loss of 2 years was correct as the arbitrator considered mitigation and future contingencies in the shaping of the award.
51. [53] McAvinn v Strait Bridge Crossing (Deschamps)
52. Francis v B.C. Minister of Justice #5
53. City of Calgary vs Canadian Union of Public Employees, Local 38. The case was not a pure arbitral remedy as the parties had agreed that all remedies, arbitral, common law and human rights were to be considered by the arbitrator.Insert your note here.
54. The Ontario Divisional Court upheld such a two year prospective income loss in Greater Toronto Airports Authority v PSCA Local 0004 on a judicial review application of the arbitral decision of Owen Shime, Q.C.
55. This was chosen as it was the first eligible date of retirement
56. The 2007 decision in Seguin v Great Blue Heron Charity Casino (Scott) in which the Tribunal concluded that there was a fifty percent chance that the applicant, The Divisional Court set aside the remedy decision, not upon its merits ; Dantu v. North Vancouver District Fire Department (1986), 8 C.H.R.R. D/3649; McKinnon v. Ontario (Ministry of Correctional Services), [2007] O.H.R.T.D. No. 5; April 2013 decision of Rocha v Pardons and Waivers Canada (Keene), also set at 50%.
57. DeSouza v 1469328 Ontario Inc. (Joachim). Neither approach was concluded as correct in the Desouza decision itself.
58. Insert your note here.
59. [60] Chopra at CHRT. He was then awarded one-third of the salary differential. This was for the interim position. 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.Insert your note here.
60. 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, [1992] 2 FC 401, 85 DLR (4th) 473 was not reliable as it came without a clear majority opinion on this issue.
61. Tahmourpour v RCMP. One of the remedies then granted was the right to enter the next training program. The tribunal noted the adverse comments as made by the FCA in Chopra but felt bound to apply this test.
62. Morgan v Herman Miller (Debane)
63. Also see Parks & MacIntryre v Christian Horizons No. 2, 16 CHRR D/171 (Mendes) in which the Board, referring to Gohm v Domtar and Torres v Royalty Kitchenware.
64. see Kooner-Rilcof v BNA Smart Payment (Basina) The contract was clearly in violation of the statute, which was not argued. The decision also, parenthetically, stated that “but-for” the pregnancy, the complainant may have resigned her employment, which is an unusual finding.
65. Alberta Human Rights Tribunal in Cowling v The Queen
66. Puleio v Moneris (Muir); Pilon v City of Cornwall (Muir); Walkinshaw v Complex Services (Slotnick)
67. Walkinshaw v Complex Services (Slotnick); The employee’s request for reconsideration was dismissed without reference to the merits of the initial decision.
68. Powers of Tribunal: 39.The Tribunal has the jurisdiction to exercise the powers conferred on it by or under this Act and to determine all questions of fact or law that arise in any application before it. 2006, c. 30, s. 5.
69. Fair v Hamilton–Wentworth District School Board, (Joachim), in this instance obiter.
70. in its 2006 decision of Tranchemontagne v Ontario (Director, Disability Support Program)