The Ontario Court of Appeal held that an employee had not failed
to mitigate his damages by rejecting work in a position reflecting
a diminished role in the company and a significant change in status
and prestige in Farwell v Citair, Inc. (General Coach
Canada), 2014 ONCA 177. Although the relationship between
the parties was not acrimonious, the salary and the working
conditions would have been virtually identical to his former
position apart from a likely bonus reduction, the employee was
highly valued and the restructuring was motivated by economic
conditions, the employee was not obliged to accept the
The employer had not offered the employee the lesser position as
mitigating employment. That would have required that the employer
to offer the position after the event that had brought about the
constructive dismissal. As it was the employer's offer of the
position that caused the constructive dismissal, the duty to
mitigate by accepting the position did not arise. The Court of
Appeal upheld the award of 24 months' salary in lieu of notice
for a 38-year employee who was 58 years of age at the time of his
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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.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
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.
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