On June 18, 2020, Vey Willetts’ lawyer Paul Willetts presented at the Law Society of Ontario’s annual 6-Minute Employment Lawyer Conference. The event, which this year was held virtually, featured over 20 speakers and touched on a broad range of workplace issues.
The paper accompanying Paul’s presentation (which can be accessed here) focused on the duty for dismissed employees to look for comparable re-employment following their dismissal (also called “duty to mitigate”) and the circumstances in which their earnings from a new role may apply to reduce the damages that may otherwise be sought.
Generally speaking, when an employee is wrongfully dismissed, they are entitled to be put in as good a position as they would have been had the contract been properly performed. As such, where an employee earns income during the period of time for which they are seeking severance, typically courts have applied a credit and correspondingly reduced the compensation (or damages) that they may seek from their former employer.
A recent decision from the Court of Appeal for Ontario, however, has potentially put in play an alternate approach to mitigation, excluding earnings received from far inferior roles take by dismissed employees out of necessity. Critics of this approach have argued that by excluding such earnings, it has the potential to effectively provide a wronged plaintiff with a windfall.
In the course of his presentation, Paul considers how subsequent cases have grappled with these competing approaches to the duty to mitigate loss of employment and how wrongful dismissal disputes arising from the pandemic may be impacted by this new development in the law.
The full conference agenda and webcast details may be found here.
Vey Willetts LLP is an Ottawa-based employment and labour law boutique that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in Ottawa and across Ontario. To speak with an employment lawyer, contact us at: 613-238-4430 or info@vwlawyers.ca.