L NOTABLE INCOME LOSS CASES - The Law of Workplace Sexual Harassment in Canada

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L NOTABLE INCOME LOSS CASES

Table of Contents

Future Loss – Tort Cases – Employment Related – Sexual Issue

Case	Court Year	Summary	Result
Silvera v Olympia	OSC 2015	Sexual assault Intentional infliction of mental suffering; breach of fiduciary duty; Occupier’s Liability Act; Breach of obligation of good faith and fair dealing at the time of dismissal	$42,750 for future therapy care, $33,900 for future lost income. Case was undefended.
K.T. v Denis Vranich, Elixir and Par adise Lane Developments Hamilton Inc.	OSC 2011	Breach of fiduciary duty Victims Bill of Rights Act Battery Negligence Summer student physically assaulted. Defendant confined her, touched her breasts and vagina, laughing while he did so.	Loss of future earnings of $75,000.
Hudson v Youth Continuum, Phillip Brindle and The Brindle Agency Inc	OSC 2012	Negligence and vicarious liability. The plaintiff was viciously attacked and raped by a troubled youth under her care. She was required to change her chosen career.	$300,000 in future income loss. The case was undefended.
City of Calgary	Arb award 2013	Sexual harassment; “fondled” on multiple occasions at her desk. The complainant was harassed following her request for an investigation. She suffered acute anxiety and suicidal ideations. The arbitrator was empowered to consider human rights, tort and arbitral remedies.	Future income loss $500,000.

Future Loss – Employment Related – No Sexual Issue

Boothman v Canada

FC TD 1993

Employment case. Assault Intentional infliction of mental suffering Verbally abusive and threatening language.

loss of future earnings $20,000

Shulz v Attorney-General and upheld on appeal although no issue of liability on appeal

BC CA 2006

Employment case. The claim based on verbally abusive conduct, not sexual harassment. Negligent infliction of mental suffering

$600,000 future income loss

Tribunals – Future Lost Income – Various Liability Grounds

Case	Trib	Summary	Result
McKee v. Hayes-Dana Inc. (1992), 17 C.H.R.R. D/79.	Ont B of I	age	15 months prospective loss
Rajput v Algoma UniversityCollege (Tarnopolsky).	Ont B of I 1976	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.	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. 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.
Turner v Canada Border Services The liability finding was set aside by the Federal Court in October of 2015. A reconsideration decision set out the means of proceeding for a new hearing de novo.	CHRT 2015		5 years prospective loss
City of Calgary vs Cana dian Union of Public Employees, Local 38.	Arb Award 2013		The maximum period for the future loss was nine years, this also being the date when the employee 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%.
McAvinn v Strait Bridge Crossing	CHRT		As above – 6 years and 7 months

Future Loss – Non Employment Civil Cases

Case	Court Year	Summary	Result
R.B. v E.S.	OSC 2017	Plaintiff sexually abused by her criminal lawyer. Single instance of non-consensual physical abuse.	$5,000 and future counselling
Waters v Bains	BCSC 2008	Sexual abuse by aunt and uncle	$10,000 costs of future care
A.B. v C.D.	BCSC 2011	Sexual touching by teacher to student	Damages for loss of future earning capacity and future care expenses of $20,000.
Rosenthal v Rosenthal	OSC 2014	Sexual abuse by parent	$45,000 future income loss. The case was undefended.
Evans v Sproule	2008	Sexual assault by police officer in cruiser while on duty. The plaintiff suffered from post-traumatic stress disorder, anxiety and depression requiring medical treatment.	$40,000 lost earning capacity, $12,342 future therapy costs.
L.M.M. v Nova Scotia	NS CA 2011	Sexual assault in non-employment context against same defendants as above in parallel case	$60,000 future counselling. The Appeal allowed the future counselling which was neither denied nor awarded at trial.
D.M. v W.W.	OSC 2013	Claim of sexual abuse as a 12 year old against uncle	$85,000 loss of earning capacity, $10,000 future care. The damage assessment was undefended.
B.M.G. v Nova Scotia	NS CA 2007	Sexual assault in non-employment context	$500,000 for past and future income loss.

Human Rights Decisions – Liability on Various Grounds

Case	Trib Court Year	Issue	Lost Income Award
Tribunal Decisions – Lost Income
Treane v City of Wind sor	HRTO 2011	Age related medical testing	2 years and 4 months
Kelly v. University of British Columbia; upheld on judicial review by B.C. Supreme Court and Court of Appeal	BCCA 2016 BCSC 2015 BCHRT 2013	Mental disability	6 years lost income award due to the delay in obtaining certification in the sum of $385,000.
(Gorksy) in McKee v Hayes-Dana 17 CHRR D/ 79.		age	8 years lost income plus future loss as noted below.
Ontario Human Rights Commission and Karumanchiri et al v Liquor Control Board of Ontario 8 CHRR D/4076 (Baum) Aff’d Divisional Court 9 CHRR D/4868.	B of I Div’n Ct	Applicant was instated to the promoted position of Chief Chemist.	8 years of income differential. The award of lost income was not raised by the employer upon the unsuccessful judicial review but success would likely have impacted this award.
Singh v Statistics Canada	CHRT 1989	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.	9 years income differential
McKinnon v Correctional Services #3	HRTO 2007		Order of instatement plus salary differential for 9 years to applicant and his spouse.
McAvinn v Strait Bridge Crossing	CHRT 2001		An order was made 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.
Turner v Canada Border Services The liability finding was set aside by the Federal Court in October of 2015. A reconsideration decision set out the means of proceeding for a new hearing de novo.	CHRT 2015	Perceived disability	Compensation to the date of hearing – 10 years
Reverend Gael Matheson v Presbytery of Prince Edward Island	PEI HRC 2007	Adverse treatment due to gender	$425,000 lost income award to the date of the hearing which was 10 years, plus tax gross-up plus reinstatement. In addition, $5,000 for medical and out-of-pocket expenses, $1,000 education allowance and $17,810 for pension loss
Fair v Hamilton-Wentworth, upheld by the Divisional Court, in turn upheld by the Court of Appeal	HRTO; 2013 Div Ct 2014 OCA 2016	Failure to accommodate disability	The lost income award was not specifically challenged upon review. The final lost income award was roughly 12 years, although it is not specifically set out in the decision. This was the time period from termination to the final order of the Court of Appeal.
Datt v. McDonald’s Restaurants (No. 3)	BCHRT 2007	Adverse treatment due to disability	Lost income from termination date to the date of hearing, being one year and 9 months; tax adjustment
Toivanen v. Electronic Arts (Canada) (No. 2)	BCHRT 2006	Adverse treatment due to disability	Award made for lost stock options of $69,000 US based on average post termination value; “lost severance pay” of $19,000
Francis v BC Ministry of Justice #5	BCHRT 2021	serious mental illness caused by employer	Award made of 7 years and 4 months lost income, less 20% risk discount. Total sum awarded was $264,000.

Human Rights Decisions Limiting Lost Income Claim – Various Grounds of Liability

Case	Tribunal Court	Summary	Result
Clennon v Toronto East General	HRTO 2009		No lost income claim as termination for performance reasons would have followed in any event.
Hughes v 1308581 Ontario Ltd	HRTO 2009		Business closed. No income claim beyond this date.
S.H. v M. Painting	HRTO 2009		Income loss mirrors seasonal aspect of employer’s business.
Milano v Triple K	CHRT 2003		9 months. Employment would have then ended, regardless of unfair conduct.
Osvald v Videocomm	HRTO 2010		Prior performance limited claim as did intervening event of complainant’s pregnancy.
Elliott v Can-Art	HRTO 2014		Lost income claim of 2.5 years limited by intervening medical issues and lack of evidence as to impact of the impact of this intervening medical issue and impact on subsequent unemployment. 3 months awarded.
McLean v. DY 4 Systems	HRTO 2010		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. 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.
Schulz v Lethbridge	AHRC 2012		30 months allowed against 5 years sought – other factors intervened at 30 months
Lane v AGDA The case went to Div Ct but not on this issue.	HTRO 2007 Div Ct		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.
Walsh v Mobil Oil	Alta CA 2013	gender and reprisal	Lost income due to adverse treatment and reprisal of $472,666 and pension loss of $139,154 and counseling bills of $10,000; Six years of lost earnings was not fully compensated due to intervention of other extraneous factor.
Li v University Health Network	HRTO 2014		Failure to mitigate. Claim denied.
Farris v Staubauch	HRTO 2011		Failure to mitigate. Claim denied.
Tahmourpour v RCMP. 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.	FCA 2016	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.	Failure to mitigate substantially reduced income loss.
Anderson v Law Help	HRTO 2016		Claim limited by failure to mitigate.
Payette v Alarm Guard	HRTO 2011		Claim denied due to failure to mitigate
Davis v Nordock	HRTO 2012		Claim denied due to failure to mitigate

Arbitral and Labour Canada Decisions

Case	Decision Maker	Summary	Result
GTAAA v PSCA Local 004	arb	Reinstatement denied. Future loss awarded in lieu.	Div Ct agreed that the future loss of 2 years was correct as the arbitrator considered mitigation and future contingencies in the shaping of the award.
Nihal Mathur v Bank of Nova Scotia, Armstrong Adjudicator (not Mahavir Mathur v Bank of Nova Scotia)	adj	Unjust Dismissal case under the Canada Labour Code. Reinstatement was denied. Award of future loss was subject to monthly reports on active mitigation.	1 year and 2 months to date of retirement.