Recently there have been notable human rights decisions awarding an income loss well beyond the parameters of what one might expect in a common law wrongful dismissal action.
These include an award of 6 years lost income to a physician adversely treated due to a mental disability, 10 years due to perceived disability, 10 years to a minister adversely treated due to gender, and some 12 years plus reinstatement as upheld by the Ontario Court of Appeal.
One might expect that the evident conclusion must be that human rights awards are the road to miraculous recoveries.
That, however, need not be the case. Indeed, often the human rights tribunal may be compelled to offer paltry sums or no relief at all for lost income.
Human rights remedies apply the concept of “but-for” in the determination of the lost income claim. The question asked, hence, is “but for the adverse conduct, what would have happened to the complainant’s employment with the company”. In the cases cited above, certainly significant awards, there was no issue raised of insecurity of employment in the days which followed termination.
Take for example, a successful defence raised by the employer, that the division in which the applicant was employed, was destined to be closed in good faith, independently of any adverse conduct by the employer. Such a proven fact will reduce the lost income claim to the closing date of the department. The closing of the entire business will similarly limit the claim to this date.
These concepts are foreign to a wrongful dismissal claim. The closing of a business or a division within it will do nothing to limit the claim for lost income in the notice period.
To make this issue even unnecessarily more complicated, the human rights tribunals have universally held that they have no jurisdiction to award lost statutory entitlements or common law remedies. The employer which argues “the business would have closed in any event in two months” will see its liability in human rights limited to the two month period. The employee cannot argue in this forum that it therefore should be entitled to the statutory or common law payment which would then have followed. Indeed there may well be no common law or statutory claim as there has been no termination.
To the flip side of the argument, an employment contract which limits a claim on termination will be of no consequence to the determination of a lost income claim before the human rights tribunal.
The path to recovery is a complex one. Counsel must be prudent to determine which source of relief may be most appropriate.