Marcel Backs v. Corporation of the City of Ottawa, 2012 HRTO 878

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marcel Backs

Applicant

-and-

Corporation of the City of Ottawa

Respondent

decision On Remedy

Adjudicator: David Muir

Date: May 3, 2012

Citation: 2012 HRTO 878

Indexed as: Backs v. Ottawa (City)

WRITTEN SUBMISSIONS

Marcel Backs, Applicant ) Sean McGee, Counsel

City of Ottawa, Respondent ) David Patacairk, Counsel

1This is an Application filed on January 26, 2009, under section 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This decision deals with further issues related to remedy following my determination of the liability issues in 2011 HRTO 959 and my initial conclusions reached on remedy in 2012 HRTO 401.

Wage Loss Issues

2In correspondence dated March 27, 2012, counsel for the applicant raised two issues which were characterized as “formula/calculation” errors in the spreadsheet used by the parties to calculate the applicant’s wage loss. The first, apparently pointed out to the applicant by the employer, related to the formula used to calculate the tax gross-up calculation of the applicant’s Workplace Safety and Insurance Act (“WSIA”) benefits. This error appears to benefit the respondent.

3The applicant was prepared to accept that this error should be rectified. However the applicant also indicated that there was a further error made in the calculation of the deemed mitigation flowing from the WSIB’s determination of a deemed mitigation for purposes of determining entitlement to benefits under the WSIA. The applicant states that the calculation in the spread sheet was based on a 40-hour work week when it should have been based on a 35-hour week, the applicant’s actual work week as a Fire Prevention Officer (“FPO”). The applicant submits that it would be unreasonable for him to be expected to work more hours in mitigating his losses than he would work in his former position and that the use of this figure in the initial spread sheet was in error.

4The respondent acknowledged the applicant’s acceptance of the tax gross-up miscalculation but takes the position that in 2012 HRTO 401 I had ordered that the mitigation deduction be based on the figures deemed appropriate by the WSIB. The respondent states that I am functus officio on that point. The respondent also states that the applicant’s issue is with the WSIB’s determinations of the appropriate mitigation and not merely the correction of a calculation error.

5On these two points I agree with the applicant and disagree with the respondent’s characterization of the effect of my prior decision.

6A number of issues in dispute between the parties were adjudicated in 2012 HRTO 401, but only those issues about which the parties had identified disagreements as follows. The parties could not agree on the length of time for which lost wages should be awarded. I determined that issue, accepting the respondent’s position. The parties disagreed about the deductibility of the applicant’s WSIA benefits beyond the time when they were said to be “locked in”. The parties also disagreed about the precise or actual pay rate for the applicant’s former position as an FPO. These issues were also adjudicated and findings made.

7Further determinations were made in 2012 HRTO 401. For example, I determined the appropriate amount of compensation for injuries to the applicant’s dignity, feelings and self-respect. I also made findings with respect to the overtime hours the applicant might have worked (see below) as well as the awarding of interest. The 2012 HRTO 401 Decision dealt with the “major points of controversy” and left it to the parties to resolve the remaining issues, which appeared to be essentially calculation issues. I did expressly remained seized in the event that the parties were “unable to resolve the outstanding issues or if an Order of some kind is required.”

8The passages of the 2012 HRTO 401 Decision dealing with the current disputes concerning the wage loss claim, paras. 21-23, are set out below:

The parties agree that the WSIA payments received by the applicant should be grossed up to reflect the fact that WSIA benefits are not taxable and wages are.

For purposes of calculating damages for lost wages, the applicant agrees that the WSIA deemed the (amounts the) applicant could have earned in occupations for which he was suited whether earned or not, can be deducted from the wages the respondent should be liable for.

In summary I find that the applicant is entitled to be paid lost wages from October 7, 2007 to November 30, 2010 less those amounts received in the form of WSIA benefits as well as the deemed mitigation during this time period. For the years 2007 and 2008 these amounts as reported on the applicant’s spreadsheet are as follows:

(TABLE OMMITTED)

9In my view a fair reading of paragraphs 21 to 23, particularly paragraphs 21 and 22, indicates nothing more than my recording of the parties’ agreements and which were apparently reflected in the spreadsheets they were working from at that time. There was no dispute about these two calculation issues, either because they had not been identified or through inadvertence and error. In particular, I did not determine the precise formula for the calculation of the tax gross up or the quantum of the deemed mitigation to be deducted. I remained seized of the case and specifically referenced outstanding potential calculation issues. I do not agree that I am functus in respect of either issue but I do agree with the applicant that if I am functus on one of these questions then I am equally functus on the other. However, as I have indicated, I find that I am not functus officio because there was no dispute before me on these points and I made no findings or orders in respect of them.

10The more difficult question to resolve is whether it would be appropriate to make the determination sought by the applicant. The parties are agreed that for purposes of determining the applicant’s entitlement to WSIA benefits he was deemed to be able to earn a specified wage per hour. The applicant accepted the principle that an amount based on that hourly wage should be deducted from his wage loss. The applicant took the position that this mitigation was theoretical and not actual, but was prepared to accept the deduction to resolve the outstanding issues.

11The number of deemed hours of work were not in issue and the applicant initially appears to have accepted that it would be on the basis of a 40-hour work week as this was the figure used in the spreadsheets. There is no dispute that in calculating a deemed mitigation for purposes of determining entitlement to the applicant’s WSIA benefits the WSIB based it on a 40-hour week. However, the applicant states that, for purposes of determining the appropriate remedy in this case, it is unreasonable to expect him to work more hours in mitigation than he would have been required to work in his home position. The respondent argues that there has been a determination of this issue by the WSIB and that it is binding on the applicant and, inferentially at least, binding on the Tribunal.

12As I noted in 2012 HRTO 401, the task in this phase of the hearing is to fashion remedies that, to the extent possible, put the applicant in the position he would have been in but for the respondent’s violation of the Code. As I also noted previously, if the applicant had been put back to work as he might have been in 2007 he would have received his regular wages and his WSIA benefits would have presumably ceased.

13In determining an applicant’s wage loss the question of whether there were other sources of income available to the applicant will arise. The respondent is normally entitled to a credit for any mitigation efforts of an applicant. It is agreed that the respondent will receive a credit for WSIA benefits received. It is also agreed that the respondent should receive a credit for an amount of mitigation wages deemed to have been earned by the applicant pursuant to the WSIA scheme. However, that amount is, as pointed out by the applicant, theoretical as there are any number of reasons why an applicant might not have earned those amounts and, in fact, in this case they were not earned by the applicant. It seems to me that a deemed work week by the WSIB is, if not irrelevant, then not determinative of the issue I must decide. The question for me is not the work week the WSIB may have deemed the applicant capable of working but how many hours a week he should be expected to work in mitigating his losses when he did not in fact mitigate his damages.

14The applicant’s position that he should not be expected to work more hours in mitigation than he was required to work as an FPO is not unreasonable. Because this deemed work and corresponding deemed earnings were not received by the applicant but represented a deduction from his WSIA benefits, I think the question remains whether it is appropriate to have expected the applicant to mitigate his damages by working longer hours than his regular work week as an FPO had the respondent not violated the Code.

15In my view the question of whether an applicant has met the obligation to mitigate would typically involve a consideration of the terms of the mitigation employment, including the wages received but also the hours of work. The respondent’s position suggests that it would have been reasonable for the applicant to work an extra five hours per week. I do not agree. In my view, the respondent bears the onus of establishing that it is reasonable to have expected the applicant to work longer hours in mitigation. Other than pointing to the deemed hours of work the WSIB used in calculating the applicant’s benefits there is no basis to conclude that it would have been reasonable. In my view, an extra five hours per week of work is not an insignificant amount of time and is beyond what could reasonably have been required in this case. Accordingly, I accept that the appropriate number of hours for purposes of determining the deemed mitigation deduction is 35 hours per week, the hours of work the applicant performed in his FPO position.

Overtime

16The applicant queries whether in 2012 HRTO 401 I made a factual determination that he would not have worked overtime hours. In my view the issue of entitlement to overtime has been determined in my prior decision. Unlike the issues above, the question of the applicant’s entitlement to overtime was clearly an issue in dispute between the parties, who made full submissions on the point. I considered those submissions and made the determination that there was no evidentiary basis to conclude that the applicant would have been able to or willing to work overtime offered to him.

Pension Issue

17The remaining issue relates to the applicant’s pension contributions. The applicant’s position with respect to the pension issue has been that the applicant should be made whole and he initially requested an order that the respondent should be required to take the steps required to reinstate the applicant’s pensionable service and to ensure that he is able to retire as an employee who had contributed to the pension plan throughout the applicable period, which I have determined would have concluded when the applicant retired in November 2010.

18The positions of the parties appear to be as follows at this stage – the respondent seeks to deduct the pension contributions the applicant would have been required to make had he been at work, but will not remit those funds to the pension plan. The respondent also submits that nothing is owing to the pension plan for the time that the applicant was not at work and that a waiver of the applicant’s contribution was provided to him by the pension plan. The respondent also states that, as a result of the waiver in favour of the applicant, his pension is unaffected. The respondent submits that these facts should be known to the applicant based on information provided to him by the pension plan; however, based on the applicant’s final submission it appears that there may be a dispute on this point.

19The respondent states that to allow the applicant to keep funds that would have been remitted to the pension plan had the respondent put him back to work would amount to a windfall for the applicant. The applicant argues that to allow the respondent to keep the funds that the applicant would have paid to the pension plan had he been at work would amount to allowing a benefit to the respondent for its violation of the Code.

20I am not sure I am able to resolve this issue based on the parties’ submissions as it is unclear what the issue is. The respondent seems to suggest, and is prepared to call evidence on the point, that the applicant is in exactly the position he would have been in had he been at work until retirement in November 2010 with both he and the respondent making the appropriate contributions to the pension plan. If that is the case, then the applicant has been made whole in respect of his pension and the only remaining issue may be whether the amounts the applicant would have contributed to the pension plan should be deducted from the wage loss award. However as indicated above it is not clear that the applicant accepts that he has been made whole at least until his retirement.

21It seems to me, based on the parties’ submissions, that the outstanding issues as related to the pension claim are as follows:

a. Has the applicant been made whole in respect of his pension that is, is the pension he is receiving what it would have been had the applicant been at work until his retirement in November 2010;

b. If the answer to this first question is no, what remedial Order is required to make him whole in that respect;

c. If the answer to this question is yes, should the respondent be entitled to a credit on the lost wages award for the pension contributions the applicant would normally have been required to pay to the pension plan.

22If the parties are unable to resolve these remaining issues a conference call hearing can be convened for hearing the parties’ submissions. I remain seized of these remaining issues and for purposes of issuing a final Order on consent or otherwise.

23I am seized of this matter.