Human rights and duties

Compensation for lost wages

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If a complainant wins their case at a hearing, the Tribunal will order a remedy. One of the remedies for discrimination is compensation for wages lost because of the discrimination.

How the Tribunal calculates lost wages

The Tribunal decides the amount after a hearing. It will decide how much wage loss the discrimination caused.

This is how lost wages is usually calculated:

The amount the complainant would have earned minus the amount they did earn.

The Tribunal will consider these four questions:

  1. Did the complainant lose work because of the discrimination? This could include:
    • being fired from a job
    • losing shifts
    • being denied a raise in pay
    • not being given a job
  2. If so, how much would the complainant have earned if there was no discrimination?
  3. Did the complainant try to find other work to reduce their lost wages? (This is called “mitigation”.)
  4. How much did the complainant earn after the discrimination?

If it is uncertain how much the complainant would have earned, the Tribunal can reduce the amount.

For example:

  • If a complainant did not get a job because of discrimination, the Tribunal might decide they only had a 50% chance of getting the job anyway. In that case, the Tribunal will reduce the amount of lost wages by 50%.
  • If the complainant may have lost their job anyway, the Tribunal might reduce the wage loss amount.

A complainant’s evidence about lost wages

The complainant must give evidence about the wages they lost. This should include documents to show how much they were earning when the discrimination happened. For example, pay stubs or income tax returns

A complainant must also show that they took reasonable steps to find other work and reduce the amount of wages they lost. This is called “mitigation”. The complainant should prepare:

  • Evidence about their efforts to find other work.For example, this could be the list of places they applied to, and copies of applications.
  • Documents to show how much they earned after the discrimination. If the complainant reasonably takes a lower paying job, they can claim for the difference in wages.For example, pay stubs or income tax returns
  • If they did not search for or accept other work, evidence to explain why.
  • If the job search was difficult, evidence to explain why.
  • Evidence about the cost of the job search, including receipts.

A respondent’s evidence about lost wages

A respondent may challenge the complainant’s evidence. A respondent might argue:

  • The complainant’s wage loss was not because of the discrimination.
    For example:
    • The respondent might give evidence that the complainant would have lost their job anyway, for non-discriminatory reasons.
    • The respondent might argue that the complainant could not have worked anyway because of an illness or disability.
  • The complainant should have done more to reduce their wage losses (mitigate). The respondent should give evidence about what job opportunities were available.

Frequently asked questions

Is wage loss limited to a “notice period”?

No. The Employment Standards Act may require an employer to pay one or more week’s wages when it ends a person’s employment. An employer may also be required to give “reasonable notice” of a termination under the law developed by the courts or under an employment contract.

Under the Human Rights Code, the complainant can claim all the wages lost because of the discrimination.

For example, if a complainant loses six months of wages, they can claim this amount, even if they would only receive eight weeks’ wages if there was no discrimination.

What benefits can be deducted from a wage loss award?

The Tribunal does not deduct employment insurance benefits.

Other benefits are more complicated. Generally, the Tribunal does not deduct insurance benefits that the complainant contributed to in some way.

Can a complainant claim for lost benefits?

Generally yes. The complainant must prove:

  1. They would have been entitled to benefits if the discrimination did not happen.
  2. The dollar amount of the lost benefits.
    Examples include:
    • maternity or parental benefits the complainant would have received
    • health care expenses that would have been covered
    • contributions to a pension plan that would have been made