The Quebec Court of Appeal recently
overturned a judgment of the Superior Court that had granted an
ex-general manager of a car dealership pay in lieu of reasonable
notice of termination equivalent to 12 months of his annual salary,
but halved because the failure of the employee in respect of his
obligation to mitigate its damages.
According to article 1479 of the Quebec Civil
Code, a person who is liable to redress for an injury
is not liable in respect of any aggravation of the injury that the
victim could have avoided. An employee that is dismissed must thus
make a reasonable effort to find a new job and should not refuse
any reasonable offer of employment even if it is made by the same
employer who dismissed him (see on this subject, the Supreme Court
of Canada Evans. v. Teamsters Local Union No.
31, 2008 SCC 20). An employee who has been dismissed
who fails to meet this obligation runs the risk of having the
claim for compensation reduced by a Court.
In this case, the employer argued successfully before the
Superior Court that the ex-general manager had not fully satisfied
his obligation to mitigate the damages that he suffered, as a
result of the time that elapsed between his termination date and
the beginning of his search for new employment (ten (10)
weeks), the number of resumes that he sent (twenty), the fact that
he did not use the contacts that he had in the field in which he
worked, that he limited his search to the region in which he
lived, and that it took him much longer to find a job
(approximately 11 months) than another employee who resigned during
the same period. The efforts of the former ex-general manager
to find a new job were deemed insufficient, resulting in a halving
of the indemnity that he was owed in lieu of reasonable
notice of termination.. The Superior Court was of the opinion that
the employee had no obligation to accept the position of body shop
director offered by his former employer as it would have been
embarrassing and humiliating for him to return to work in such
Dissatisfied with the judgment, the employer appealed the
decision, alleging that the Superior Court erred in law in finding
the employer and one of its directors and shareholders jointly and
severally liable to pay the damages.
Using a cross-appeal, the employee called for an increase of pay
in lieu of reasonable notice of termination due to the bad faith of
the employer at the time of dismissal. The Court of Appeal rejected
The Honorable Mr. Justice André Rochon, writing for the
Court of Appeal, concluded that the Superior Court had imposed on
the employee a duty to mitigate that was too onerous and that
went beyond what was fair and in the circumstances. The judge
stated that a Court cannot blame an employee who has more than
twenty years of service for having waited ten (10) weeks before
starting his employment search. In addition, it is obvious that the
holiday season was a challenging time to conduct an employment
search. He adds that "[...] the obligation to mitigate
these [sic] damage is an obligation of means and not an obligation
to take every imaginable measure to get there."
(free translation) The indemnity that the employee received was
thus reduced only by one month (rather than 6 months).
With respect to the personal liability of a director of the
company, the Court of Appeal confirmed that he had committed an
fault by authorizing the payment of a dividend equal to the net
proceeds from the sale of the company, a decision that benefited
the director, who stripped the company of its assets while the
claim of the former employee was still in dispute. Without it being
necessary to pierce the corporate veil, Mr. Justice Rochon
confirmed that the personal fault of the director was
sufficient to incur a non-contractual liability under Section 1457 CCQ.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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