Aylsworth v Law Office of Harvey Storm, 2016 ONSC 3938 is an interesting case that further defines the boundaries of what type of job employees can reasonably reject without failing in their duty to mitigate their wrongful dismissal damages.
Lynne Aylsworth had worked at the Law Office of Harvey Storm for 15 years as a legal assistant when Storm merged with another real estate law practice ("REL"). He gave Ayslworth approximately four months' working notice of termination. Towards the end of the working notice period, REL offered Aylsworth employment as a clerk and receptionist. The terms of REL's offer were quite similar to her employment with Storm with respect to salary and basic duties. There were differences, however, including that she was required to sign a written agreement with REL; she would no longer entitled to take vacation in the summer months; sick days would be treated as vacation days; there would be an initial probationary period of employment.; and her severance entitlement would be limited to statutory minimums. After making inquiries about the position and unsuccessfully attempting to negotiate for a higher salary, Aylsworth rejected REL's job offer.
On a summary judgment motion brought by Aylsworth, the sole issue before the Motion Judge was mitigation; specifically, whether Aylsworth acted reasonably in declining to accept REL's offer.The Motion Judge found that REL's offer was sufficiently different in a negative way to justify Aylsworth's rejection of that offer, and awarded her $32,500 in damages for wrongful dismissal.
The Ontario Divisional Court subsequently dismissed Storm's appeal of the Motion Judge's decision, finding that the Motion Judge did not err in concluding that Storm did not meet its burden of establishing that Aylsworth had failed to mitigate.
An employer may believe that an employee's rejection of an offer of alternate employment at the same salary and with similar duties constitutes a failure of the common law duty to mitigate. Aylsworth demonstrates, however, that this is not necessarily the case where the terms of the rejected offer differ sufficiently and negatively in other respects.
Written with the assistance of Melanie Simon, articling student.
About Norton Rose Fulbright Canada LLP
Norton Rose Fulbright is a global law firm. We provide the world's preeminent corporations and financial institutions with a full business law service. We have 3800 lawyers and other legal staff based in more than 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.
Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.
Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.
For more information about Norton Rose Fulbright, see nortonrosefulbright.com/legal-notices.
Law around the world
nortonrosefulbright.com
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
