Volpi v. Lifemark Health Corp. Merits and Damages Decisions

An Employer’s Duty to Inquire and Nearly One Million Dollars in Wage Loss Damages

The recent outcome of a complaint to the Alberta Human Rights Tribunal (the Tribunal) in Volpi v. Lifemark Health Corp. reflects substantial developments in Alberta human rights law, and serves as a cautionary tale for employers when considering an employee’s leave request and when accepting an employee’s resignation. Volpi provides key guidance to employers regarding the duty to inquire and reflect a rare case where the Tribunal ordered wage loss damages for a significant period of time, extending after the date the employee obtained new employment.

Factual Background

Mr. Volpi worked as a physiotherapist for the respondent employer, Lifemark Health Corp. (Lifemark), for 16 years until his resignation on September 30, 2016. He was regarded as a high performer by Lifemark, and Lifemark relied heavily on his services. As one of only two physiotherapists at Lifemark’s Village Square location, Mr. Volpi had a very busy case load and often worked double patient schedules daily.

Mr. Volpi had diagnosed Bipolar II Disorder, which is characterized by alternating periods of high states (periods of hypomania frequently involving impulsive, urgent and ill-advised decisions) and low states (periods of ruminative regret, desperation, and depression).

Mr. Volpi went on periodic leaves to manage his mental health. He experienced a significant decline in 2008 and 2009, which resulted in his hospitalization. He disclosed his mental health challenges to Lifemark at this time and made arrangements with Lifemark for accommodations in the workplace moving forward. Mr. Volpi’s deteriorating mental health resulted in him taking further leaves in December 2015 and January 2016. He again advised Lifemark that the leaves were in relation to his mental health and the evidence showed that Lifemark supervisors had knowledge that Mr. Volpi was experiencing stress at the time.

In June 2016, Mr. Volpi went to his supervisor, Mr. Singh, and told him something was wrong and he needed time off to deal with his mental health. He took a week-long leave at the start of July 2016, using the time to meet with his family physician.

Upon Mr. Volpi’s return to work in July 2016, his condition had not improved. Mr. Volpi advised Mr. Singh that he required a longer period of time off to deal with his mental health. Mr. Singh stated that Mr. Volpi could not take more time off during the summer due to other physiotherapists’ already-scheduled vacation and the need to have adequate coverage. During this discussion, Mr. Volpi indicated that he was struggling and offered to provide a medical note to Lifemark. Notably, Mr. Singh did not inquire to Mr. Volpi whether the leave was related to mental health concerns. Mr. Singh ultimately told Mr. Volpi that he could have time off from October 1 to November 8, 2016.

Mr. Volpi worked through the summer, despite his deteriorating mental health. On September 30, 2016, the last day before his scheduled leave, Mr. Volpi discussed his upcoming leave with his colleagues and mentioned that he did not know if he would be ready to come back after his leave. One of his colleagues told Mr. Volpi that he should tell Mr. Singh if he did not intend to return. Mr. Volpi entered a hypomanic state and quickly wrote and submitted a resignation letter to Mr. Singh.

Mr. Singh asked Mr. Volpi if there was anything that could be done to change his mind but did not ask if the resignation had anything to do with Mr. Volpi’s mental health challenges nor did he make any other inquiries before accepting the resignation. Mr. Volpi subsequently confirmed his resignation over email on the evening of September 30 and again in an October 8, 2016 email. Mr. Volpi gave evidence that at that time he was in an agitated state because he had come to understand that Lifemark management was upset with the manner of his resignation and the short period of notice he had provided.

Mr. Volpi attempted to contact Lifemark several times starting on October 20, 2016, stating that while he was still struggling, he wanted to return to work. Lifemark told him that he could reapply for his former position but did not inquire as to his mental health nor did it offer to reemploy him or rescind its acceptance of his resignation.

Mr. Volpi alleged that he experienced increasing depression leading to hospitalization in March of 2017. He spoke to Lifemark again in August 2017 to ask if he could return to his former position. He did not return and commenced new employment at another clinic in June 2017 on a part-time basis.

Decision on the Merits: A Duty to Inquire

In Volpi v. Lifemark Health Corp., 2026 AHRC 26 (the Merits Decision), the Tribunal found that Lifemark had discriminated against Mr. Volpi by: (i) delaying the leave he requested in July 2016 until October 2016; and (ii) by accepting his resignation without appropriate inquiry.

The Tribunal found that Lifemark had left Mr. Volpi with no choice but to accept the later leave in October of 2016, concluding that Mr. Volpi’s inability to take time off for mental health when he needed it was an adverse impact in employment. At the time of Mr. Volpi’s request, Lifemark knew that he had serious mental health challenges that had resulted in hospitalization and had a history of accommodated leaves and yet deferred his requested leave to better fit with the clinic’s vacation scheduling.

The Tribunal also found that it was incumbent on Lifemark to pause before accepting the resignation to make real inquiries into Mr. Volpi’s mental state, holding that Lifemark had the opportunity to make these inquiries several times, including at the time of resignation, thereafter when Mr. Volpi corresponded with Lifemark, and again in August 2017 when Mr. Volpi reached out to see if he could return to work. Given their awareness of his mental health struggles and the suddenness of the resignation, the Tribunal concluded that Lifemark had good reason to inquire as to whether or not Mr. Volpi’s decision to resign was a result of or connected to his disability.

Damages Decision: The “But For” Test

In Volpi v. Lifemark Health Corp., 2026 AHRC 71 (the Damages Decision), the Tribunal considered what damages award was appropriate given that it had found liability for discrimination on the part of Lifemark in the Merits Decision. The Tribunal determined that a significant award for lost wages was appropriate. In addition to $40,000.00 for general damages for injury to dignity, Lifemark was ordered to pay Mr. Volpi $965,338.14 for lost wages.

The Tribunal assessed what would have been Mr. Volpi’s wages “but for” the discriminatory acceptance of Mr. Volpi’s resignation by Lifemark. This analysis comes from the root principle that the injured party should be put back into the position they would have enjoyed had the wrong not occurred, to the extent that money is capable of accomplishing that goal.

The parties agreed that Mr. Volpi should receive lost wages for the nine months in between his resignation and the date he obtained new employment. The parties differed on whether wage loss damages were appropriate past the date Mr. Volpi obtained new employment.

Mr. Volpi argued that he was entitled to damages for the difference between the income he earned from his new employment and his former employment at Lifemark until age 69, which constituted 24 years of future employment. Lifemark argued that Mr. Volpi was not entitled to any damages after he commenced new employment, as he had not led any evidence that he was under medical restrictions from working to the same level as he had during his employment with Lifemark.

The Tribunal rejected Lifemark’s argument, finding that an employer cannot end an employee’s employment in a discriminatory fashion, and then be absolved from paying the employee lost wages because the employee did not additionally prove that the employer’s conduct permanently disabled the employee from working to a certain level.

The Tribunal generally accepted Mr. Volpi’s argument, but reduced the wage-recovery period to 10 years on the basis that it was unlikely Mr. Volpi would have worked with Lifemark until age 69 and reduced his proposed calculation of annual income on the basis of certain billing changes implemented by Lifemark that would have impacted him had he remained employed there.

The Tribunal recognized that the lost wages award was significant. However, it justified the award based on the fact that Mr. Volpi was a long-term, financially successful, and extremely valuable employee, and – but for the discrimination he experienced – he would have carried on working for Lifemark for a significant period of time.

Takeaways for Employers

The Merits Decision puts employers on notice that automatic acceptance of an employee’s resignation can carry human rights liability risks. Employers should pay close attention to the circumstances surrounding an employee’s resignation and should proceed with caution where a resignation is delivered suddenly and unexpectedly, especially when it coincides with a leave of absence or other visible signs of stress or illness.

The difficulty for employers will be delineating between a resignation motivated by workplace stress versus a resignation motivated by mental health challenges, especially as these two situations may present very similarly. Assessing the way forward when an employer receives notice of resignation may require the input of counsel before acceptance of the resignation to assist in reviewing the surrounding facts and to determine whether a resignation is motivated, partially or entirely, by mental health considerations.

The Damages Decision reflects what is likely the highest discrimination damages award in Alberta. The Tribunal generally has wide discretion to determine the end point for wage loss damages, and the Tribunal has almost always been rather conservative in making this assessment. While the Tribunal’s approach has not always been consistent, the Tribunal has reflected a tendency to end the wage loss recovery period based on the commencement of new employment, the date of the hearing, or the identification of an anticipated future event that can be said to end the wage recovery period. An award covering a ten-year period after the date the employee obtained new employment is exceedingly rare.

It remains to be seen whether the Damages Decision is an anomaly or if it represents a change in the Tribunal’s approach to the “but for” test to order wage loss damages more liberally. Employers should expect employees to raise the Damages Decision in future human rights complaints where lost wage recovery is a potential remedy based on the facts.