The Alberta Human Rights Commission (“Commission”) has ordered an employer, Lifemark Health Corp., to pay substantial compensation after finding that it discriminated against its former employee, Mr. Volpi, on the basis of mental disability. The remedy decision follows an earlier decision on the merits in which the Commission concluded that Lifemark delayed Volpi’s ability to take mental health-related leave in 2016, then later accepted his resignation without properly inquiring into whether the resignation was connected to his disability or whether accommodation was required.
Facts
Volpi had worked for Lifemark for 16 years as a physiotherapist and was described by his supervisor as a highly valuable employee. The Commission accepted medical evidence that he had previously managed his mental health conditions successfully through negotiated time off, and that a meaningful response to his leave request could likely have allowed him to remain employed. The Commission therefore concluded that Lifemark’s failure to meet its duty to inquire contributed to the end of Volpi’s employment and to a serious decline in his mental health, which included his hospitalization in 2017.
The Tribunal awarded Volpi $40,000 in general damages for injury to dignity, finding that the discrimination was objectively serious and had significant personal consequences. The decision emphasized the importance of work to Volpi’s identity and self-worth, the lasting effect of the job loss, and the role Lifemark’s conduct played in worsening his mental health.
The Tribunal also awarded $965,338.14 for 10 years of lost wages. This included:
In calculating the award, the Commission applied a causation analysis, borrowed from tort law, but modified for the human rights context to consider what Volpi would have earned “but for” for the discriminatory acts, reducing where appropriate. In applying this analysis, the Commission accepted actuarial evidence about Volpi’s past and projected earnings but reduced the claim to account for workplace changes that likely would have lowered his income and for the probability that he would not have remained with Lifemark until his planned retirement age. The Commission also considered mitigation and found Volpi did not fail to mitigate his losses.
Takeaways for Employers
This decision underscores the importance of handling health-related leaves with appropriate care and in a manner consistent with an employer’s obligations under human rights laws. This includes following appropriate procedures where an employer has reason to inquire as to whether a disability may be impacting the employee’s ability to work or their conduct. A resignation is not always the end of the matter: where an employer knows or ought to know that an employee’s conduct may be related to their disability, it must make appropriate inquiries and consider accommodation options.
The award also highlights the substantial liability employers may face when discriminatory conduct causes or contributes to serious, long-term employment and health consequences. Although Volpi found new employment about one year after resigning, he was awarded the difference between his former and new wages over an approximately nine-year period. While this decision arose in Alberta, the BC Human Rights Tribunal also applies a causation analysis when assessing wage-loss awards, making these considerations relevant for BC employers.
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