View cases - Stewart McKelvey

Order Under s.37(2)(d)(ii)[74] Mr. Derksen is seeking full restitution for wages lost from August 2002 to July2003, less income earned. He earned $23.00 per hour for 35 hours per week. The totalloss of income claimed, net of his earnings is $32,758.90.[75] I was convinced from the evidence and especially from the low enrolment in theProgram that Mr. Derksen’s job performance was not what was expected of him. Inparticular, I found the lack of clients enrolled in the Program after five weeks was tellingof Mr. Derksen’s lack of leadership skills. I compare those numbers to the number ofclients in the program after he was replaced. As a result of my finding, I am prepared toconclude that Mr. Derksen would not have successfully completed his probationaryperiod, and as a result, I am prepared to award only part of his wage loss. Mr. Derksenwill be awarded lost wages for the period from August 12 to the end of his probationaryperiod on October 1, 2002, based on a calculation of $23.00 per hour for 35 hours perweek for a total of $5,957.00.[76] Mr. Derksen seeks a tax gross-up to offset any income tax liability which wouldaccrue as a result of receiving any income loss awarded in a year in which he is earningthe equivalent of a full time income. Mr. Derksen is awarded a tax gross-up to offset anyincome tax liability as a result of awarding the income loss in a year in which he isearning a full time income.[77] Mr. Derksen is also seeking payment for medical expenses he says would havebeen covered by his extended health care plan at Myert effective October 2, 2002 in theamount of $1,740.00. The expenses submitted cover a period commencing from August11, 2002, when Mr. Derksen would not have qualified for extended health benefits untilOctober 2, 2002. Since I have concluded that Mr. Derksen would not have completed hisprobationary period, he would not have been eligible for the extended health coverage,and therefore I decline to order reimbursement.[78] Mr. Derksen also seeks remuneration for lost wages to attend the hearing; anamount of $770.00 (5.5 days x $140.00 per day). Under s. 32(d)(ii) of the Code, I havethe jurisdiction to award certain wages or salary lost, or expenses incurred by a21