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Failure to mitigate reduces damages in Human Rights claim

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 alternative employment.

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 mitigate.

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.

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