How far does a wrongfully dismissed employee have to go to
mitigate his or her losses? The Ontario Court of Appeal recently held that an employee is not required to
accept employment that is not comparable with the employee's
previous job, having regard to the position's status, hours and
In this decision, the plaintiff held the position of senior
night supervisor at a hotel restaurant and bar when his employment
was terminated. He had worked in various positions at the
restaurant for a period of 22 years. At trial, a judge of the
Ontario Superior Court of Justice held that the plaintiff was dismissed without
cause and was entitled to 20 months' pay as damages in lieu of
The employer argued that the plaintiff had failed to mitigate
his damages, because he had turned down an offer of employment for
a senior bartender position at another hotel. The position paid
$12.00 an hour and involved significantly more serving
responsibilities and fewer management responsibilities, as compared
to his previous employment with the defendants. The plaintiff was a
partial owner of another local bar, and he decided to accept a
lesser paying, part-time bartending job in order to have more time
to devote to his business. Ultimately, both the trial judge and the
Ontario Court of Appeal found that the plaintiff's efforts to
mitigate his loses were reasonable.
This case demonstrates the parameters that the courts will be
inclined to set when analyzing an employee's mitigation efforts
and suggests that the courts may take a flexible approach when
considering the reasonableness of an employee's efforts to
mitigate his or her losses.
Written with the assistance of Samantha Cass, articling
Norton Rose Fulbright Canada LLP
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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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