In the wake of the Divisional Court's decision in the Hamilton-Wentworth District School Board v
Fair, human rights damages have been a hot topic. As you
may recall, the Human Rights Tribunal of Ontario awarded
significant damages in that decision which included an award of
back pay for a period of approximately 10 years.
However, similar to wrongful dismissal litigation, applicants in
human rights proceedings have a duty to mitigate their damages by
showing that they have made reasonable efforts to seek out suitable
In Hamilton-Wentworth District School Board,
the Tribunal did not delve into this issue in much depth. However,
it noted that the applicant had provided detailed evidence of her
diligent attempts to find employment.
The recent decision Li v University Health Network, is an
example where the applicant was not so diligent. In that decision,
the applicant was successful in a claim of discrimination
surrounding the termination of his employment. However, he was
awarded no lost income damages as a result of his failure to
In University Health Network, the applicant had
not made any efforts to find alternative employment for more than a
year and a half after his employment was terminated. The applicant
had argued that he continued to have medical restrictions at that
time. However, there was no evidence that those medical
restrictions precluded him from seeking alternative employment.
In this decision, the applicant failed to make any attempt to
mitigate for a significant period of time. However, the Tribunal
has provided guidance in other decisions as to what it would
consider to be sufficient mitigation efforts. For instance, in
McCreary v 407994 Ontario, the applicant did
provide evidence of attempts to mitigate. However, the applicant
limited her job search to cashier positions in grocery stores. The
Tribunal found that in order to satisfy the duty to mitigate, the
applicant must do a more expansive search. The limited search
conducted by the applicant was not adequate. The applicant was
awarded minimal lost income damages.
The Hamilton-Wentworth District School Board
decision does show that employers can face staggering damage awards
for failure to accommodate employees. However, this does not mean
that we will necessarily be seeing such high damage awards
consistently. Firstly, the prolonged period of time in
Hamilton-Wentworth District School Board from when
the application was filed to when the decision was rendered is not
the norm. This application got caught between the human rights
regime change that occurred in 2008. Although cases can take a
while to get to hearing, the period of time in this case was
exceptional. Secondly, not all applicants will have made a diligent
effort to find alternative employment. Where the Tribunal is faced
with little or no mitigation evidence, the applicant will not
receive lost income damages or a significantly reduced amount.
This, of course, does not mean that they will not receive other
monetary damages, like those for injury to dignity, feelings and
self-respect; however, it will greatly reduce the potential impact
on the employer.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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