Mitigation Part 2: No Requirement to Search for Less Comparable Positions Over Time

Mitigating less comparable positionsEmployees suing former employers for wrongful dismissal damages are obligated to “mitigate” their damages, and a failure to do so may lessen the damages awarded by a Court. In Part 1 of this series, we provided a general overview of the employee’s duty to mitigate. In Part 2, we are delving into specific mitigation issues: whether an employee is required to seek out lower paying positions after an unsuccessful period of searching for a more comparable role; whether job titles of the positions applied for matter; and how employers meet the onus of showing an employee has not met their duty to mitigate. These questions were answered by the Ontario Court of Appeal in Lake v. La Presse, 2022 ONCA 742. Note that the decision discussed here overturned Lake v. La Presse (2018) Inc., 2021 ONSC 3506, which we covered in a previous blog post. 

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Mitigation Part 1: What is the Duty to Mitigate in Claims of Wrongful Dismissal?

Duty to Mitigate in Claims of Wrongful DismissalThe duty to mitigate is one of the few employee obligations in a wrongful dismissal dispute, and it can reduce a defendant employer’s liability significantly. 

What is the Duty to Mitigate?

The duty to mitigate requires an employee to take reasonable steps to secure comparable employment after they have been wrongfully dismissed. When an employer wrongfully dismisses an employee, unless there is enforceable contract language to the contrary, the employee is entitled to damages for pay in lieu of common law reasonable notice. 

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New Boss Law Bootcamp

HR law toolkit: Boss Law BootcampHello Friends of SpringLaw!

We hope your summer has gone well! 

For many of our employer clients, it’s time to get back to business, solidify HR law systems and post-pandemic norms and to gear up for a busy fall.

We want to make that easy for you – we’re excited to announce the launch of our new Boss Law Bootcamp. This comprehensive online program is designed for both new employers not sure where to start as well as boss pros who all need to keep their legal templates and resources up to date.

The Bootcamp includes the up-to-date core HR law contracts and policies you must have in place today, plus bonus guides & checklists AND time with our employment lawyers to customize and help you with the how of implementing the legal infrastructure. We want this to be effortless and quick for you.

And we have an Early Bird price until Sept 15!

Packed with practical knowledge, templates, policies and practices!

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Ontario Court of Appeal Upholds 26-Month Notice Period

In the world of workplace law we often say that, absent exceptional circumstances, the greatest notice period that any wrongfully dismissed employee could be awarded by an adjudicator is 24 months. But what are those exceptional circumstances? Years ago, we blogged about Dawe v. The Equitable Life Insurance Company of Canada, a case in which the Ontario Court of Appeal overturned the trial judge’s award of 30 months of reasonable notice for a terminated employee, reducing the final notice period to 24 months. Recently, the Ontario Court of Appeal released a decision, Currie v. Nylene Canada Inc. (“Currie”), affirming the trial judge’s assessment of damages in the amount of 26 months of reasonable notice for the wrongfully dismissed employee, Ms. Currie (“Ms. Currie”). Below we will look at the factors the Court considered in rendering this judgment.

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Failure to Mitigate and Reduction of the Notice Period

Employees who have been wrongfully dismissed from their employment have a legal duty to mitigate. In other words, these employees must look for new employment if they wish to seek a termination payment from their former employers. Regardless of whether an employee successfully secures new employment prior to the end of their notice period, the court will still look to see that the employee took reasonable steps to find alternative comparable employment. If the court is not satisfied that the employee has made proper efforts to do so, it may reduce or deny the termination pay the former employer would otherwise be ordered to pay to the employee. A recent decision, Lake v. La Presse (2018) Inc., 2021 ONSC 3506, underlines the repercussions an employee could face if they fail to take such reasonable steps to mitigate their damages.

The Case of Lake v. La Presse (2018) Inc.

In this 2021 Ontario Superior Court case, the Court reduced a former employee’s common law/reasonable notice period from eight to six months due to the employee’s failure to mitigate their damages. 

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