In a recent decision the Superior Court
of Quebec refused to award a termination indemnity to a 75-year-old
employee due to his failure to mitigate his damages following the
cessation of his employment.
Mr. Levy began his employment at Standard Desk Inc. in April of
1971. In May 2009, the employees of Standard Desk, including Mr.
Levy, were advised that the company was shutting down its plant.
Mr. Levy, as well as other employees, were offered a position with
one of Standard Desk's related entities. The position was
similar to Mr. Levy's current role and had the same salary and
benefits. The only difference in the two positions was that the new
role would be in the city of Granby, whereas Mr. Levy currently
worked in Laval. However, the company was prepared to offer the
employees a daily shuttle service between the two cities, at the
company's expense. Mr. Levy categorically refused the offer and
consequently, his employment was terminated in December 2009. Mr.
Levy was 75 years old at the time of his termination. Thereafter,
Mr. Levy's lawyer sent a letter of demand to Standard Desk
claiming nearly $100,000 as payment in lieu of notice of
termination and in moral damages.
The Superior Court first referred to Article 2091 of the Civil Code of
Quebec which provides that an employee who is terminated
without a serious reason is entitled to receive a reasonable notice
of termination, that must take into account the particular
circumstances of the employee's employment, including years of
service, age, nature of the job position and difficulty of finding
alternate employment. The Court further declared that the
objective of the reasonable notice of termination is to provide an
employee with a sufficient period of time in order to secure new
employment without incurring economic losses.
After considering all these factors, the Court determined that
Mr. Levy would be eligible for a reasonable notice of termination
of 14 months, in addition to the 8 weeks of notice already
However, the Court then proceeded to discuss an employee's
duty to mitigate his damages following the termination of his
employment. In particular, the Court confirmed that an employee
must make a reasonable effort to find similar employment and not
refuse any reasonable offer of employment.
As such, Mr. Levy had the burden of demonstrating that he was
incapable of accepting the offer of employment made by Standard
Desk and that he was incapable of finding another job. The evidence
in this case ultimately showed that Mr. Levy did not try to
find a new job because in his view, considering his age, it would
be impossible and therefore he was relieved of this duty to
The Court confirmed that in order to mitigate his damages, Mr.
Levy should have at least accepted the job offer at Granby, which
was a reasonable position in the circumstances. Alternatively,
considering Mr. Levy he did not want to retire, he was obligated to
take reasonable steps to find a new job, which he failed to do. As
such, the Court declared that Mr. Levy did not mitigate his damages
and consequently, was not entitled to the termination indemnity of
This case serves as a reminder that all employees, irrespective
of their age, have a legal duty to mitigate their damages following
the termination of their employment by either accepting a
reasonable offer of alternate employment made by the employer or by
making efforts to seek new employment.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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