Lost Wages: How Are They Calculated at the HRTO?Ian
In the pursuit of upholding and promoting human rights, the Human Rights Tribunal of Ontario (HRTO) plays a pivotal role in addressing discrimination claims.
The HRTO is an independent adjudicative body governed under the Ontario Human Rights Code (Code). Its primary mandate is to address and resolve complaints of discrimination based on protected grounds, including race, sex, age, disability, and others. The HRTO seeks to ensure the equal treatment of individuals and fosters a culture of inclusivity across various aspects of society, including employment, housing, services, and more.
One of the remedies the HRTO can award is lost wages, which aims to compensate claimants for the economic losses they have incurred because of discriminatory actions.
This article explores how lost wages are calculated at the HRTO.
Human Rights Tribunal of Ontario Remedies
Remedies provided under the Code serve two primary purposes. First, remedies are intended to discourage future acts of discrimination. Second, they are designed to compensate a claimant for any losses arising from the Code‘s infringement.
When an employee alleges discrimination in the workplace, an employer may be liable to the claimant for general damages due to the human rights violation. If the discrimination led to the employee’s permanent job loss, then the employer may be liable for lost wages as well.
Additionally, in exceptional cases where the employment relationship is still viable despite the discrimination, the HRTO may order the reinstatement of the claimant alongside compensation for lost wages. In such cases, the employer may be required to provide back pay from the date of the discrimination until the decision date. It is important to note that due to the length of time it can take to attend a hearing, the awarded back pay of lost wages can result in high monetary remedies being awarded against an employer.
Consulting with an employment and human rights lawyer will help you determine if your human rights were violated. Although you can submit your Application to the HRTO yourself, it is recommended that you speak to a lawyer to ensure that your claim is properly brought.
If you are an employer who received a Human Rights Application, an experienced litigation lawyer can help you prepare a strong Response.
Calculating Lost Wages
When individuals experience discrimination, particularly in employment, it can result in adverse financial consequences. Lost wages refer to the income a claimant would have earned had they not been subjected to the discriminatory treatment that led to their job loss. Calculating lost wages is crucial for the HRTO to compensate affected individuals appropriately.
To determine the amount of lost wages, the HRTO considers several critical factors, which vary depending on the circumstances of each case. These factors include:
- Effects of Discrimination;
- Employment History with the Employer; and
- Mitigation Efforts.
The length of time the discriminatory conduct persisted is a significant consideration in lost wages calculation. The HRTO assesses the duration of the discriminatory treatment to determine its impact on the claimant’s employment and earning potential.
The claimant’s employment history is examined to establish a baseline for calculating lost wages. Factors such as job stability, income growth, and career prospects are considered to determine the potential earnings the claimant would have achieved had the discrimination not occurred.
Lastly, the HRTO considers whether the claimant made reasonable efforts to mitigate their losses. Claimants are generally expected to make reasonable efforts in seeking alternative employment opportunities if they were terminated due to discrimination. However, the HRTO will also consider the impact the discrimination had on the individual and if they were reasonably able to return to work.
Methods for Calculating Lost Wages
There are various methodologies used by the HRTO to calculate lost wages, each tailored to the case’s specific circumstances.
The HRTO can award a momentary remedy for past wage losses. This method involves assessing the claimant’s pre-discrimination earnings, including salary, bonuses, and other benefits. By comparing these earnings to the actual income received during the discriminatory period, the HRTO calculates the difference as the lost wages.
In cases where discriminatory conduct has long-term effects on the claimant’s employment prospects or resulted in permanent job loss, future wage loss is considered. This method estimates the potential income the claimant would have earned had they not faced discrimination and quantifies it as part of the compensation.
The HRTO plays a vital role in safeguarding the rights of individuals who have experienced discrimination. Calculating lost wages is essential to the HRTO’s mandate to provide just remedies to affected claimants. By considering the employment history, mitigation efforts, and effects of discrimination, the HRTO strives to determine a fair compensation amount.
Consulting with an employment and human rights law can help you determine if you are entitled to lost wages. It is recommended that you speak to a lawyer to ensure that any and all violations of the Code are properly pleaded in your Application, and the total amount of damages listed are accurately calculated.
A litigation lawyer can assist in drafting a Response to the Application.
If you are an employer with intentions of terminating an employee, an employee who has been terminated, or you otherwise need assistance at any stage of a workplace dispute, our team of experienced workplace lawyers at Achkar Law can help. Contact us by phone toll-free at 1 (866) 590-8327 or email us at [email protected], and we will be happy to assist.