Mitigation — Ontario Employment Law

C. v. W.

C. v. W.: Fiduciary Duties and Joint Ventures

This was an appeal to the Court of Appeal from a trial judge's decision dismissing the plaintiffs' claims and allowing the defendants' counterclaim for breach of contract. The employee and his company claimed breach of confidence, breach of fiduciary duty, and breach of a joint venture agreement regarding a research and development project, while the employer counterclaimed for negligent misrepresentation and breach of contract. The trial judge dismissed the plaintiffs' claims and awarded $1 to the employer on the counterclaim because the employee took work product when he resigned. The Court of Appeal upheld the dismissal of the plaintiffs' claims because they were employees and commercial parties with no joint venture or fiduciary relationship, but allowed the appeal on the counterclaim, dismissing it because the breach was not pleaded and there was no evidence of what was taken. The costs appeal was dismissed.

F. v. Susur Lee Group Inc.

Constructive Dismissal Appeal: Condonation and Mitigation

This is an appeal to the Divisional Court from a trial judge's decision in a constructive dismissal case involving the Susur Lee Group Inc. The appeal addressed whether the employee's silence and delayed proceedings constituted condonation of the employer's repudiatory breach, whether ESA payments during a closure amounted to a return to work, and whether continued work could serve as mitigation. The Divisional Court found legal errors in the trial judge's analysis regarding condonation, the effect of ESA payments, and mitigation, allowing the appeal and ordering a new trial.

S. v. Sleep Country Canada Inc.

Wrongful Dismissal: Mitigation Production Order

This is a procedural case management decision in a wrongful dismissal action involving Sleep Country Canada Inc. The court addressed motions regarding non-compliance with documentary production, specifically focusing on the adequacy of mitigation records and the permissibility of rolling productions. The motion to strike the action was dismissed, but the court ordered further examinations and imposed a strict production timetable, reserving costs.

W. v. Brandt Tractor Inc.

Wrongful Dismissal: Mitigation Income Deducted

This is an appeal from a wrongful dismissal trial decision addressing whether just cause existed for the employee's termination and whether the employee failed to mitigate damages. The Court of Appeal found that the trial judge erred in refusing to deduct mitigation income earned from a lower-paying position during the notice period, but upheld the finding that just cause was not established.

H. v. M&C Investments Incorporated

Wrongful Dismissal: Discovery of Mitigation Documents

This is an interlocutory discovery motion within a wrongful dismissal action, determining whether an employee must produce further documents regarding their mitigation efforts. The court considered the relevance of mitigation records to the assessment of damages and the burden of proof under established employment law principles.

W. v. Canaccord Genuity Corp.

Wrongful Dismissal: Managing Director Awarded 21 Months Notice

This wrongful dismissal case involved a Managing Director investment banker terminated from his senior role in a specialised mining practice. The court determined that 21 months was the reasonable notice period, applying the Bardal factors including the character of employment, age, and limited comparable opportunities. The court also addressed compensation during the notice period by adopting a comparator method for discretionary bonuses and adjusted damages for mitigation and deferred compensation.

T. v. Best Buy Canada Ltd.

Wrongful Dismissal: 15-Year Employee Awarded 18 Months Notice

This wrongful dismissal case addressed whether an employer proved just cause for terminating a specialised technician with fifteen years of service. The court found the employer failed to meet the burden of proving intentional privacy breaches, establishing that the dismissal was without cause. Consequently, the court awarded eighteen months' reasonable notice, rejecting the employer's mitigation defence and denying claims for aggravated or punitive damages.

P. v. Vulsay Industries Ltd.

Wrongful Dismissal: 65-Year-Old Manager Awarded 26 Months Notice

This wrongful dismissal case addressed the reasonable notice period for a 65-year-old laboratory manager with 40 years of service. The court found that the employee's age and length of service constituted exceptional circumstances, justifying a notice period of 26 months. The employer's mitigation defence was rejected, and the claim for a contingency discount on damages was refused.

B. v. 6HARMONICS INC.

Wrongful Dismissal: Default Judgment for 9 Months' Salary

This is a default judgment motion in a wrongful dismissal case where the defendant failed to respond to the action. The court found the defendant liable for breach of the employment agreement, specifically for failing to pay nine months' salary as stipulated in the contract. Applying the principle from Bowes v. Goss Power Products Ltd., the court held there was no duty to mitigate damages where the contract fixed liquidated damages, awarding the plaintiff $184,166.69 in damages.

A. v. Fiera Foods Company

Wrongful Dismissal: 13-Year Employee Awarded 10 Months' Notice

This wrongful dismissal case involved an employee with 13 years of service who was terminated for alleged time theft and dishonesty. The court considered whether the employer had just cause to terminate the employee based on an investigation supported by video and punch clock data, rejecting the employee's claims of reprisal for whistleblowing and unionization. The court awarded ten months' notice but denied moral or punitive damages due to the lack of bad faith, and drew an adverse inference against the employee for failing to provide evidence of mitigation efforts.

R.T. v. Grenville Management Inc.

Constructive Dismissal: 16 Months Notice Awarded

This case addresses whether a unilateral layoff constituted constructive dismissal at common law and whether Ontario Regulation 2020/228 precluded such claims during the pandemic. The court held that the regulation did not displace common law rights and awarded 16 months' notice, considering the pandemic's impact on the job market. The employer's mitigation defence was rejected due to the employee's health issues and belief in the layoff's validity, but punitive damages were denied.

F. v Susur Lee Group

Constructive Dismissal: Temporary Lay-off and Condonation

This case addresses whether a unilateral temporary lay-off without a contractual term amounted to constructive dismissal and whether the employee condoned the lay-off by returning to work. The court applied the Potter and Pham framework, finding that the employee's recall within 12 weeks and acceptance of pay constituted condonation rather than mitigation, leading to the dismissal of the constructive dismissal claim.

B. v. Salesforce.com

Wrongful Dismissal: 11 Months' Notice Cut to 8

This wrongful dismissal case addressed the reasonable notice period for a plaintiff terminated after eight years of service, where the court found 11 months’ reasonable notice and reduced it to eight because the plaintiff would not produce evidence of earnings during the job search. The court also ruled on compensation during the notice period, finding the employer's bonus policy unenforceable, but denied bad faith damages and reimbursement for retraining expenses.

Pateman v. Koolatron Corporation

Wrongful Dismissal Appeal: Damages Recalculated to $88,509

This is an appeal from a wrongful dismissal trial decision involving an employee terminated due to a shortage of work. The Court of Appeal upheld the finding that the dismissal was without cause but corrected a mathematical error in the trial judge's calculation of damages, increasing the final award to $88,509.05.

P. v. Sharon Veterinary Clinic Professional Corporation

Constructive Dismissal: Veterinarian Resignation Claim

This case involved a veterinarian with 20 years of service who claimed constructive dismissal after his employer refused to send a termination letter to a client. The court determined that the employee's refusal to return to work constituted a resignation rather than a constructive dismissal, leading to the dismissal of his wrongful dismissal and Human Rights Code claims.

B. v. M.

Termination for Cause: Investment Advisor Case

This case addresses whether an investment advisor was terminated with just cause for engaging in unauthorized discretionary trading. The court applied the proportionality test from McKinley and found the employer had just cause. In the alternative, if the termination had been without cause, the court would have assessed reasonable notice at 11 months, reduced by three months due to a failure to mitigate. Claims for lost opportunity to sell a book of business and corporate oppression were dismissed.

B. v Welcome Home Children’s Residence Inc.

Constructive Dismissal: 6.5 Months Notice Awarded

This case addresses whether an employee was constructively dismissed due to unilateral changes, including reduced hours and removed responsibilities. The court found constructive dismissal occurred and awarded damages, fixing the reasonable notice period at 6.5 months inclusive of statutory notice. The court also addressed mitigation, deducting 30% of the employee's government wages as deductible income, and rejected an after-acquired cause defense based on time theft.

M. v. Mercantile Exchange Corporation

A wrongful dismissal case addressing issues of damages and the employee's duty to mitigate losses. The case also involves a dispute regarding a medical examination.

T. v. Aurora Hotel Group

Wrongful Dismissal Appeal: Mitigation and Damages Upheld

This is an appeal from a wrongful dismissal trial decision regarding the calculation of damages. The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's determination that the employee made reasonable efforts to mitigate losses, the award for lost benefits, and the moral damages awarded for the manner of dismissal.

G. v. Kinsdale Carriers

A wrongful dismissal case addressing issues of reasonable notice and the employee's duty to mitigate damages.