In Benjamin v. Cascades Canada ULC, the Ontario Superior Court of Justice reviewed the law surrounding an employee’s duty to mitigate their common law reasonable notice damages arising from wrongful dismissal. In such cases, the onus is on the employer to establish a failure to mitigate, and that onus requires the employer to establish that the employee did not take reasonable steps to seek comparable work.
In this case the employee, Benjamin, had worked as an unskilled general labourer at Cascades for 28 years when he and 41 other employees were dismissed without cause when Cascades eliminated all production functions at its Scarborough plant. After Benjamin refused a 50-week severance package, Cascades paid him the termination and severance pay he was entitled to under the Employment Standards Act, 2000. Unsatisfied with this result, Benjamin sought 24 months common law reasonable notice.
As a service to all employees whose jobs had been eliminated, Cascades provided one-on-one coaching, weekly updates on the job market, and workshops on resume building, interview tips, and job searching techniques. But rather than apply for two comparable jobs Cascades informed him about, Benjamin chose to enrol in a six-month welder training program in order to “brush up from unskilled labour to skilled labour”. Cascades argued that the decision to retrain, instead of apply for comparable work, was not reasonable.
The judge agreed with Cascades. By choosing to start a new career as a welder so that he could control his own hours and enjoy increased job security, Benjamin had failed to reasonably mitigate his common law damages. Although choosing to seek retraining is not, on its own, sufficient to claim that an employee did not adequately mitigate, since Benjamin took no reasonable steps to search for comparable employment and opted out of the services provided by Cascades, he was not entitled to any recoverable damages.
Had Cascades not provided the affected employees with job search assistance, it would have been demonstrably more difficult for it to satisfy the legal onus placed on employers to prove that the employee had not taken reasonable steps to find comparable employment. The gold standard adopted by Cascades in this case serves as an important guide for employers hoping to avoid common law reasonable notice claims after no-cause terminations.
Written with Travis Bertrand, summer student.