How far does a wrongfully dismissed employee have to go to mitigate his or her losses? The Ontario Court of Appeal recently held that an employee is not required to accept employment that is not comparable with the employee’s previous job, having regard to the position’s status, hours and remuneration.

In this decision, the plaintiff held the position of senior night supervisor at a hotel restaurant and bar when his employment was terminated. He had worked in various positions at the restaurant for a period of 22 years. At trial, a judge of the Ontario Superior Court of Justice held that the plaintiff was dismissed without cause and was entitled to 20 months’ pay as damages in lieu of reasonable notice.

The employer argued that the plaintiff had failed to mitigate his damages, because he had turned down an offer of employment for a senior bartender position at another hotel. The position paid $12.00 an hour and involved significantly more serving responsibilities and fewer management responsibilities, as compared to his previous employment with the defendants. The plaintiff was a partial owner of another local bar, and he decided to accept a lesser paying, part-time bartending job in order to have more time to devote to his business. Ultimately, both the trial judge and the Ontario Court of Appeal found that the plaintiff’s efforts to mitigate his loses were reasonable.

This case demonstrates the parameters that the courts will be inclined to set when analyzing an employee’s mitigation efforts and suggests that the courts may take a flexible approach when considering the reasonableness of an employee’s efforts to mitigate his or her losses.

Written with the assistance of Samantha Cass, articling student.

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