Vey Willetts lawyer Andrew Vey recently spoke with The Lawyer’s Daily for an article entitled “Appellate ruling confirms employers must lead evidence when disputing mitigation efforts: lawyers.“
The article considers the implications of a recent employment law decision from the Court of Appeal for Ontario (Lake v. La Presse 2022 ONCA 742). In Lake, the Court of Appeal overturned a summary judgment ruling in which the court reduced the amount of severance owing to a newspaper executive for failing to seek new employment in a more junior role.
In so doing, the Court of Appeal affirmed that dismissed employees are required to seek comparable re-employment; they are not required to seek out, and accept, lesser roles:
Specifically, the Court concluded:
The motion judge erred in principle when, at para. 65, she accepted that, in mitigation, after a reasonable period of attempting to find similar employment, a dismissed employee must begin searching for a lesser paying job (which was based on an obiter comment by a trial judge in Neilipovitz v. ICI Paints (Canada) Inc. (2002), 27 C.C.E.L. (3d) 256 (Ont. S.C.), at paras. 25-26), and then, at para. 68, she concluded that the appellant should have applied for a sales representative role if she continued to remain unemployed. The obligation of a terminated employee in mitigation is to seek “comparable employment”, which typically is employment that is comparable in status, hours and remuneration to the position held at the time of dismissal: Carter v. 1657593 Ontario Inc., 2015 ONCA 823, at para. 6. There was no obligation for the appellant, to seek out less remunerative work, including by working as a sales representative.
In speaking with The Lawyer’s Daily about this decision, Vey opined that “it’s a very sensible decision from the Court of Appeal…the big takeaway for me is it reaffirms long-standing principles with respect to the duty to mitigate.”
Vey further noted that the decision on appeal was concerning as it suggested that as a notice period goes on, an employee may be obligated to start looking for (and accepting) less and less comparable work. That said, “the Court of Appeal stomped down on that [suggestion] and said, ‘no, that’s incorrect’. The duty is to look for comparable work at all times.”
Vey Willetts LLP is an Ottawa-based employment and labour law firm 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.