Human Rights Tribunal Decides Remedy in “Citizenship” Case

Written on behalf of Peter McSherry
A globe, representing a human rights claim of a worker terminated for not being eligible to work in Canada
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In a prior posting, we discussed the “liability” or fault decision of the Human Rights Tribunal in an unusual and dramatic case. That decision found that the employer had acted in a manner contrary to the Human Rights Code when it required that all new hires be eligible to work in Canada on a permanent basis.

The case was complicated as the individual had misled the company in his job interview about this very issue. The prior article deals with this question which turned on an important aspect of human rights law, which states that the adverse decision need only be influenced by a human rights violation.

The Remedy

Recently, the Human Rights Tribunal of Ontario released its decision on the appropriate remedy. It awarded the job applicant the total sum of $120,000.

Awards for lost income in human rights cases are much different from employment law wrongful dismissal cases which are based on the concept of reasonable notice. There is an implicit cap on fair notice which in the best possible case will be close to two years.

Human rights lost income awards are based on an entirely different concept. These awards are determined by looking at what income the person would have earned had the wrongful action not taken place. This principle can lead to significant awards of lost income from the date of the wrongdoing to the date of the remedy hearing and in some cases, even beyond that date.

This case is a good example of the dramatic difference in the two ways of looking at the damage claim for lost income.

In this case, the employee sought a lost income award on this basis of 4 years. Generally speaking, this claim was allowed. The employee was still required to show that he was diligent in looking for alternate employment over this time period.

In addition, he was required to show that he likely would have remained employed with the company over this time period and would not likely have been terminated for performance or other reasons.

Suppose, for example, the division for which the employee should have been hired was closed and all employees were terminated. The company could then argue that this employee would have suffered a similar fate and hence the lost income claim should cease as of this date. This was not the argument in this case but this is mentioned to show the general principle in determining the lost income award.

The arithmetic in the case at hand led to a claim of roughly $100,000. In addition, an award was made for damages for hurt feelings of $15,000.

Understand the Law

This case was a very complicated one from the very start. It illustrates quite well the value of astute legal advice. Knowledge of the law is critical and can be very valuable. Get advice before you act. Contact the offices of Guelph employment lawyer Peter McSherry. We can help you determine whether you may have a claim due to a human rights violation and how to deal with it. Contact us online or by phone at 519-821-5465 to schedule a consultation.