View cases - Stewart McKelvey

[47] Section 37(2)(d)(ii) of the Code provides that a Tribunal member may award all or a partof the income lost as a result of the contravention. In general, under human rights legislation aninjured party is entitled to be put in the position he or she would have been in had thediscrimination not occurred, subject to the injured party’s obligation to take reasonable steps tomitigate the loss: Vanton v. British Columbia (Council of Human Rights) (1994), 21 C.H.R.R.D/492 (B.C.S.C.) at D/500.[48] Mr. Jones’ last day of employment with C.H.E. was November 18, 1998. According tohis job search record he made over 75 contacts with potential employers between that date andApril 29, 1999 (Exhibit 2, tab 9). He had a number of interviews but was unsuccessful in findingpermanent employment during that time. However, he was able to earn some income from parttimework. In June 1999, he commenced full-time employment at Menzies Metal Products(“Menzies”) earning $10/hr., which was less than the $14.72/hr. he had been earning at C.H.E.Mr. Jones’ total employment income from November 18, 1998 to December 31, 1999 was$18,340.24. His estimated income with C.H.E. for that period, based on his income for 1998, is$37,809. Therefore his loss of employment income for that period was $19,468.76.[49] The Respondents submit that employment insurance income ($5,202) received by Mr.Jones in 1998 should be included as income. They did not provide any authority to support thatposition. The Tribunal has held that unemployment insurance benefits should not be deductedfrom an award for damages for lost wages: see, for example, Hill v. Dan Barclay EnterprisesLtd. (27 October 1999) (B.C.H.R.T.) at para. 95; Lengert v. Samuel et al. (26 August 1999)(B.C.H.R.T.) at para. 99. Mr. Jones’ lost income was caused by the Respondents. The effect ofincluding the employment insurance paid to Mr. Jones as income would be to reduce the amountof compensation required of the Respondents. In effect, the employment insurance fund wouldbe paying for a wrong caused by the Respondents. Mr. Jones should not receive doublerecovery; however, the appropriate remedy is for the Respondents to compensate Mr. Jones forhis lost income and for Mr. Jones to repay his insurance benefits.[50] Calculation of Mr. Jones’ lost income from January 1, 2000 to the date of the hearing ismore complicated as he did not provide a statement of earnings for the period. According to hispay stubs, his salary was increased to $12/hr. during the last pay period of 1999 or the first of13