Canada: “Take This Job And Shove It? Maybe, Maybe Not”: The Supreme Court Of Canada Extends A Dismissed Employee’s Duty To Mitigate

Last Updated: May 16 2008
Article by Dave McKechnie

It is well established that an employee who has been dismissed on a without cause basis, without reasonable notice or compensation, has a duty to mitigate the loss of his employment by seeking new employment. If the employee does not take appropriate steps to find suitable alternative employment, any damages that would otherwise be awarded to him may be reduced.

The Obligation To Continue Employment

In a constructive wrongful dismissal, that is a "dismissal" brought about by an employer's unilateral change to a fundamental term of employment, the duty to mitigate has an additional wrinkle, at least in theory. Several years ago, the Ontario Court of Appeal in Mifsud v. MacMillan Bathurst Inc. (1989), 70 O.R. (2d) 701 held that a reasonable person should continue in his current employment notwithstanding a constructive dismissal when "the salary offered is the same, the working notice conditions are not substantially different or the work demeaning, and the personal relationships involved are not acrimonious".

In a surprising decision released last week that follows the reasoning in Mifsud, the Supreme Court of Canada held that an employee who had been dismissed without notice was required to accept a subsequent offer of employment from his former employer in order to mitigate his damages.

In Evans v. Teamsters Local Union No. 31 (S.C.C. as yet unreported), the plaintiff was employed for over 23 years with Teamsters Local Union No. 31 ("Teamsters") when he was dismissed without cause and without notice. After five months of continued pay while attempting to negotiate a resolution, the Teamsters required the plaintiff to return to his old position for a period of 19 months, essentially providing the plaintiff with fixed-term employment in order to mitigate his damages. The plaintiff did not return and pursued a claim for wrongful dismissal.

A 6 to 1 majority of the Court held that there is no distinction between an employee who has been constructively dismissed and an employee who has been dismissed without sufficient notice. In either case, if the employer offers the employee continued employment or employment in another position, the dismissed employee may be required to accept such employment in order to mitigate his damages.

Writing for the majority, Mr. Justice Bastarache stated that "in the absence of conditions rendering the return to work unreasonable, on an objective basis, an employee can be expected to mitigate damages by returning to work for the dismissing employer". The majority of the Court indicated that the work atmosphere would be the most crucial element in determining whether it was reasonable for the employee to refuse the position. Other barriers could be a significant reduction in stature, change in the location of work, or a significant change in the employee's duties. It is important that the Court held that any alleged barriers to a return to work must be viewed on an objective basis, and not from the point of view of the particular employee.

What is most surprising about the Court's decision in Evans is that it imposed a positive obligation on the plaintiff to accept re-employment with the Teamsters, notwithstanding that his employment had been terminated several months previously.

What This Means For Employers

While the Court's treatment of the facts in this case is somewhat curious, the principle put forward is consistent with cases such as Mifsud. While it will likely be the exception when an employer is able to demonstrate that the employee should have accepted the new employment, an employer has the capability of reducing its notice obligation in the right situation.

In our view the Court's decision in Evans does not drastically change the law surrounding the duty to mitigate, although the case is helpful for employers who can make a good faith offer of employment to a dismissed employee. Any offer to the employee should take into account the employee's previous compensation and position the employee held, what the working atmosphere would be like and what changes the employer could make to ensure that the working relationships are as cordial as possible.

However, the reality is that trial courts have consistently distinguished Mifsud. It is likely that trial courts will treat the Court's decision in Evans in the same way: acknowledging the principle as valid but finding on the particular facts that the employee did not have an obligation to accept the same employer's offer of employment.

An additional concern for employers is the Court's comment in Evans that so-called "Wallace" damages should not be subject to mitigation. Wallace damages, which result from a prior Supreme Court of Canada decision, have been characterized as an extension of the notice period in order to take into account an employer's bad faith conduct at the time of termination. The notice period extension recognized that such conduct may impact the employee's ability to seek suitable alternative employment. However, by making such damages exempt from mitigation income, the Court has effectively turned Wallace damages into an award of punitive damages against the employer.

Any member of our Employment and Labour Relations Group would be pleased to discuss the duty to mitigate and the Court's decision in Evans.

The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted.

© Copyright 2008 McMillan Binch Mendelsohn LLP

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Dave McKechnie
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions