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 position.
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 dismissal.
Norton Rose Fulbright Canada LLP
Norton Rose Fulbright is a global legal practice. We provide the world's pre-eminent corporations and financial institutions with a full business law service. We have more than 3800 lawyers based in over 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.
Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa (incorporated as Deneys Reitz Inc) and Fulbright & Jaworski LLP, each of which is a separate legal entity, are members ('the Norton Rose Fulbright members') of Norton Rose Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein helps coordinate the activities of the Norton Rose Fulbright members but does not itself provide legal services to clients.
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.