In Ottawa and across Ontario, when an employee has been subject to a Wrongful Dismissal, whether due to an outright termination or as a result of Constructive Dismissal, he or she may be entitled to damages for reasonable notice under the common law. If an employee is seeking damages for reasonable notice under the common law, then the employee will have a duty to mitigate his or her damages.
What is the duty to mitigate?
The duty to mitigate is the common-law duty that an employee must lessen their damages by seeking and accepting alternative employment.
The Supreme Court of Canada, in its 1975 decision Red Deer College v. Michaels, wrote:
The primary rule in breach of contract cases, that a wronged plaintiff is entitled to be put in as good a position as he would have been in if there had been proper performance by the defendant, is subject to the qualification that the defendant cannot be called upon to pay for avoidable losses which would result in an increase in the quantum of damages payable to the plaintiff. The reference in the case law to a “duty” to mitigate should be understood in this sense.
In short, a wronged plaintiff is entitled to recover damages for the losses he has suffered but the extent of those losses may depend on whether he has taken reasonable steps to avoid their unreasonable accumulation.
Alternative employment means employment that is comparable or similar in salary, hours, and responsibility to the position lost.
It is the employer that has the onus of proving that the employee has failed to mitigate. Whether a court will find that an employee has satisfied his or her duty to mitigate will depend on the facts of the case. The court will look at many factors, including the geographical location of the search, the age of the employee, and the availability of alternate employment.
When the duty to mitigate applies
The duty to mitigate only applies when an employee is seeking damages for reasonable notice under the common law. It does not apply to the minimum termination and severance entitlements under the Employment Standards Act.
Consequences of failing to mitigate
If an employee fails to mitigate his or her damages, the damages for wrongful dismissal may be reduced or denied entirely.
As such, it is important that the employee keep track of his or her efforts to obtain alternate employment. This may include keeping a record of job searches conducted, applications submitted, and interviews attended.
Do you need an employment lawyer?
If you think you may have been wrongfully dismissed and are wondering whether you have a duty to mitigate, or you have another employment law issue, contact one of our lawyers today for a free consultation by calling us at (613) 518-2416, or, you can contact us directly here.
* The information in this article is intended for informational purposes only and does not constitute legal advice.