Even though an employee "won" his safety-retaliation
case under the Occupational Health and Safety Act after
his employer failed to file a Response, the employee's damages
were reduced because his job search was shoddy.
After initially trying to find a job around his father's
Ontario home, where he could live rent-free, he "decided to
abandon Ontario for an unspecified and illusory opportunity in
Calgary" which, evidently, did not come through.
The Ontario Labour Relations Board stated:
"In the result, I am of the view that Stringer did not
demonstrate that he acted reasonably in his job search by leaving
Ontario for Alberta and after his arrival there. While the
responding party bears the onus of establishing a want of
mitigation, the Board cannot ignore the approach taken and effort
expended by the applicant in determining the period for which he
might be compensated in a proceeding such as this. To put the
matter starkly, if a person such as the applicant did nothing at
all to attempt to find work and simply argued that the employer was
required to prove that by doing nothing the individual had passed
up specific opportunities, the Board would, in my view, be
justified in concluding that the onus on the employer did not arise
and the individual would be restricted to a nominal level of
compensation. So too, where there is evidence of the person's
making some attempt to obtain other employment, but the approach
taken was ill conceived, poorly executed, or unsupported by a
logical factual basis, the Board should hesitate to conclude that
the applicant has made reasonable efforts to mitigate and should
reflect that concern in its decision with regard to lost wages. The
applicant is not to be held to a standard of perfection, but, as
the Board held in Adams v. W.E. Hall & Sons Company, supra, the
applicant's entitlement to compensation is dependent upon his
satisfying the Board that he made "reasonable efforts to
mitigate [his] damages".
Although the employee requested 30 weeks' pay as damages,
the OLRB decided that that would compensate him for the period of
his "Alberta sojourn", which would not be appropriate. In
the end, the OLRB decided that he was entitled to 17 weeks'
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In a policy statement released early last month, the Ontario Human Rights Commission clarified its position on the scope of medical documentation that employees need to provide when making disability-related accommodation requests.
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