Awards For Loss Of Wages In The Human Rights Context: They Can Be Higher Than You Think

Imagine terminating an employee after two years of service and being ordered to pay them a full year of lost wages. Or terminating after 16 years of service and having to pay 14 years of wages.

If these sound out of line with common law wrongful dismissal awards – which typically top out at two years’ pay for the longest-serving employees – it’s because they’re actually human rights awards. Human Rights Code (Code) remedies can be very different from normal pay in lieu of notice that the courts will award to a terminated employee. Employers must pay attention to the difference.

In Yanover v. The Otter Guy (2024 HRTO 731), a recent decision issued by the Human Rights Tribunal of Ontario, Mr. Yanover worked for 20 years with a competitor water taxi company before starting as a water taxi operator with The Otter Guy. He worked for the new employer for two years and was then told by the owner, “we’re going with younger people now” and was fired. He was 72 years old. When he didn’t immediately leave the vicinity, the respondent called the police. Then Mr. Yanover left the area.

The decision garnered a lot of attention when it was released, in part because of the facts but in part because of the remedies the Tribunal ordered (the respondent did not participate in the hearing). The Tribunal awarded $20,000 as compensation for the Code violation, but also awarded Mr. Yanover one year’s wages – much higher than even a 72-year-old employee would normally receive as an ordinary severance package after only two years of service.

The Tribunal can order a number of remedies, including reinstatement, compensation for a code violation and loss of wages. A lot of employers forget that loss of wages can be ordered, and they can quickly add up to a high amount, higher than the compensation for the code violation itself. In Hamilton-Wentworth District School Board v. Fair, 2016 ONCA 421, not only did the Tribunal order reinstatement of an applicant after 14 years of not working with the school board, but it also ordered the board to pay her lost wages for the entire 14 year time period.

Loss of wages as human rights remedy

Employers should note the following about loss of wages awards in human rights cases:

• the purpose of Tribunal awards is to put the person back into the position they were in prior to the Code violation
• loss of wages awards depend on the context of the situation, with some applicants not receiving any loss of wages while others, like Ms. Fair, receive 14 years of lost wages; and
• the onus of providing an applicant’s failure to mitigate in human rights situations is on the employer

Take away

If you are an employer and have human rights cases, it’s important to start addressing loss of wages immediately when you receive the human rights complaint and to mention it in your pleadings. Loss of wages awards in human rights cases are subject to mitigation just like at common law. If the employee finds another job, or unreasonably fails to do so, the amount they are awarded for lost wages can be reduced. But it’s the employer’s onus to prove this. As an employer, as time progresses, you can run your own mitigation search by finding jobs comparable to what the employee had at your organization. Then you can submit this information to the Tribunal to reduce the amount of loss of wages that may be ordered. It is also helpful to provide the job ads directly to the former employee (or their lawyer if they have one) to help prove that the employee had a real opportunity to apply and find other jobs, as well as to offer a positive (though honest) reference to prove that you’ve supported their job search.