It is not contested that a human rights tribunal has the authority to make an award for a future income loss beyond the date of the hearing, ¹ even in the absence of a reinstatement request. ² This is a significant claim in a human rights employment law mediation.

Such a prospective income loss of 15 months was made in an age discrimination case. ³

A case in which the applicant did not seek reinstatement allowed a five year prospective lost income claim. ⁴

One decision noted that an issue with respect to the assessment of a future loss is that there is no control over the mitigation factor⁵ and for that reason it would only be made in “exceptional circumstances”. It is submitted that this is not the law. It is true that the assessment of a future loss is not mathematical. The difficulties inherent in the assessment of the claim should not, however, lead to a denial of the application of the concept. Such damage claims are commonplace in tort actions. The difficulty in assessing the likelihood of mitigated income should not be a barrier.

Other decisions have prudently considered the impact of other employment post-hearing and ruled accordingly. ^{6 7}

A further option is to simply assess the likelihood of future alternate income and apply a discount to the sum sought as the full prospective loss. ^{8 9}

These decisions demonstrate how a future income loss may be assessed. The remedy should not be ignored because of the possibility of such future income off-sets. The Canadian Human Rights Tribunal¹⁰ ordered that the first available position of a bridge patroller be awarded to the complainant in its decision of November 2001. The commencement date of the lost income award was May 31, 1997. ¹¹

The award stated that failing such an offer of alternate employment, the total lost income was to be set at a 10 year period. The contingent prospective loss was hence set for a time period of six years and seven months. There was no issue addressed such as mitigation from other third party employment.

There is authority in an arbritral context to allow for a prospective income claim where reinstatement is not allowed as noted immediately below. ^{12 13}

In an arbitration case in which the normal reflexive remedy of reinstatement was not allowed, the arbitrator instead allowed a future income loss of roughly two years to age 55, ¹⁴ less any sums earned by the grievor in this period. As noted by the Divisional Court which upheld the award on this issue, the arbitrator correctly considered mitigation and other future contingencies.

Common law cases founded in tort claims for what are essentially sexual harassment claims, albeit using the tort theory, often allow for a prospective income loss, as discussed elsewhere.

1. McLean v DY4 Systems (Keene)
2. It would be prudent to advance a claim for reinstatement to support a claim for a prospective income loss.
3. McKee v. Hayes-Dana Inc. (1992), 17 C.H.R.R. D/79. A supplementary followed which has no impact on this issue at (19 CHRR D/511).
4. Turner v Canada Border Services CHRT
5. Pilon v Cornwall (Muir)
6. The Ontario Board of Inquiry made a similar contingent order for a prospective income loss in the May 1976 decision of Rajput v Algoma University College (Tarnopolsky). The complainant, a Sociology professor, had been given a terminal contract by the university for the academic year running from July 1, 1974 to June 30, 1975.

   A subsequent vacancy was advertised for a similar position in February of 1975, to which Dr. Rajput applied. It was found that he was not successful in this application due to racial discrimination.

   Reinstatement was not ordered due to the impact of such an order on innocent third parties. An order of compensation was made for the next academic year was made as a prospective loss of income instead, dependent upon the attempts made by the complainant to seek alternative income in this time period internally and externally

7. A similar conclusion was reached in the unjust dismissal case under the Canada Labour Code in Mathur v Bank of Nova Scotia (Armstrong). The adjudicator determined that reinstatement was not an appropriate remedy and hence awarded compensation through to Mathur’s retirement age, albeit on terms requiring Mathur to report on his mitigation efforts during the prospective period from the date of the award of May 2, 2002 through to the date of retirement of July 22, 2003.  
8. City of Calgary vs Canadian Union of Public Employees, Local 38. There remained the issue as to when MP might in the future be able to return to work. The minimum time period from the date of the decision was accepted by the panel as being two years into the future. The maximum period was nine years, this also being the date when she would be eligible to receive retirement benefits. The panel concluded a fair date to use for a future income loss would be based on a likely return to work date of July 1, 2018. The date of the decision was December 1, 2013. The future income loss was hence established to be $512,149, which was reduced by a 10% risk factor and a discounted rate for a present payment of a future income stream of 2.25%.
9. Greater Toronto Airports Authority v PSCA Local 0004 on a judicial review application of the arbitral decision of Owen Shime, Q.C. The court agreed that the future loss of 2 years was correct as the arbitrator considered mitigation and future contingencies in the shaping of the award.
10. The Ontario Board of Inquiry made a similar contingent order for a prospective income loss in the May 1976 decision of Rajput v Algoma University College (Tarnopolsky). The complainant, a Sociology professor, had been given a terminal contract by the university for the academic year running from July 1, 1974 to June 30, 1975. A subsequent vacancy was advertised for a similar position in February of 1975, to which Dr. Rajput applied. It was found that he was not successful in this application due to racial discrimination.  Reinstatement was not ordered due to the impact of such an order on innocent third parties. An order of compensation was made for the next academic year was made as a prospective loss of income instead, dependent upon the attempts made by the complainant to seek alternative income in this time period internally and externally.
11. McAvinn v Strait Bridge Crossing (Deschamps)
12. City of Calgary vs Canadian Union of Public Employees, Local 38. The case was not a pure arbritral remedy as the parties had agreed that all remedies, arbitral, common law and human rights were to be considered by the arbitrator
13. The Ontario Divisional Court upheld such a two year prospective income loss in Greater Toronto Airports Authority v PSCA Local 0004 on a judicial review application of the arbitral decision of Owen Shime, Q.C.
14. This was chosen as it was the first eligible date of retirement.