Compensation for Lost Wages in BC Workplaces

Employers in B.C. have a duty to treat all employees fairly and must accommodate disabled employees and employees returning to work after a period of absence due to illness or injury.

Failure to fulfill these duties can lead to claims of discrimination along with compensation for the loss of wages suffered during the period in question.

The British Columbia Human Rights Tribunal can impose harsh penalties on any employers not fulfilling their duties and will calculate the loss of wages due to the employee.

What are wage loss benefits in B.C.?

Wage loss benefits are paid by WorkSafeBC and cover up to 90 percent of an employee’s wages if they are temporarily disabled (partially or completely) and cannot continue working due to a workplace injury or a work-related illness. However, there may be instances where WorkSafeBC/WCB may agree to pay health care expenses but not wage loss benefits.¹ In such cases, the decision typically rests on the injury’s specifics and the claim’s circumstances.

If the condition becomes permanent, wage loss benefits are stopped and the employee would, instead, be eligible to apply for a permanent disability benefit.

Employees who are capable of working reduced hours or with modified duties will receive partial benefits that cover a portion of the income loss.

If your claim relates to loss of wages due to discrimination (rather than workplace injury), it will be heard by the British Columbia Human Rights Tribunal…

How does the Tribunal calculate lost wages?

If you claim loss of wages due to discrimination in B.C., the Human Rights Tribunal will determine whether your claim is valid and if so, how much you are due.

Lost wages are generally calculated by assessing the amount that the complainant would have earned minus the amount they did earn during the period in question.

In making the assessment, the Tribunal will consider the following questions:

1. Did the complainant lose work because of the discrimination? This could include:
   • Being terminated
   • Reduced shifts
   • Being denied a pay rise
   • 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? (“mitigation”)
4. How much did the complainant earn after the discrimination?

These guidelines are generally adequate for the Tribunal to make a reasonable calculation based on the facts. If certain information is unknown, such as how much the complainant would have earned, the Tribunal has the flexibility to make what it considers a reasonable judgment.

For instance, a calculation for discrimination when a complainant is fired may be reduced if the Tribunal considers that there was a good chance that he/she would have been terminated anyway (even without the discrimination).

What evidence is required to make a complaint about lost wages?

To successfully make a complaint about lost wages from discrimination, employees need to provide evidence such as the following:

• Documents to show how much you were earning when the discrimination occurred (e.g., pay stubs, income tax returns, etc.)
• Evidence of “mitigation” showing their efforts to find other work (positions they applied for, copies of job applications, etc.)
• Documents to show how much they earned after the discrimination (pay stubs, income tax returns, etc.)
• Evidence to explain why no other work was sought or accepted or to show why it was not possible to find other work
• Evidence to show the cost of the job search (receipts, etc.)

What evidence will your employer provide?

If you file a claim for loss of wages due to discrimination, the employer (“respondent”) has the right to a defence and can file evidence to support their actions.

This might include the following:

• Evidence that the complainant would have lost their job anyway (for non-discriminatory reasons)
• Evidence that the complainant could not have worked anyway because of an illness or disability
• Evidence to show that the complainant did not take the necessary steps to reduce their wage losses (mitigation).

Are there limits to claims for loss of wages due to discrimination?

The Human Rights Act governs workplace discrimination rather than the Employment Standards Act.

Under this legislation, there is no limit to the amount of compensation that a complainant can claim for loss of wages, which means you can ask for the full amount that you claim to have lost. There is also no set notice period to follow.

What about lost benefits?

The Tribunal does not generally deduct insurance benefits that the employee contributed to.

Complainants of discrimination in British Columbia can generally claim benefits, such as maternity or parental benefits, health care expenses and contributions to a pension plan that would have been made.

However, they need to provide evidence that they would have been entitled to these benefits if the discrimination did not happen and can quantify how much these benefits were (a dollar amount).

If you have any questions about your legal rights as an employee, an employment lawyer from Taylor Janis LLP in Vancouver can advise you during a confidential telephone or video consultation.

References

1. Repin v Aam Ventures Ltd, 2020 BCSC 227 (CanLII)
   https://canlii.ca/t/j5d9v ↩︎

2. British Columbia Human Rights Tribunal
https://www.bchrt.bc.ca

3. Canadian Human Rights Act, RSC 1985, c H-6
https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-h-6/latest/rsc-1985-c-h-6.htm

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