Mitigation of Damages — Ontario Employment Law

S. v. Ontario Research and Innovation Network

Wrongful Dismissal: 2.25 Years Service Awarded 6 Months Notice

This wrongful dismissal case involved a plaintiff terminated without cause after two years and three months of service. The court awarded six months' reasonable notice based on Bardal factors and determined the plaintiff was entitled to commissions based on the original employment agreement despite the draft plan never being finalized. Damages were calculated for the notice period, unpaid commissions, and loss of benefits, subject to mitigation for earnings from new employment.

D.C. v. Arista Homes Limited

This is a wrongful dismissal case involving a dispute over the contract of employment and termination without cause. The legal issues addressed include the determination of reasonable notice and the employee's duty to mitigate damages.

Monterosso v. Metro Freightliner Hamilton Inc.

This is an appeal to the Court of Appeal from a trial judge's decision regarding the early termination of an independent contractor. The employer engaged the worker on a 72-month fixed-term contract but terminated his services without cause with 65 months remaining. The trial judge awarded the worker $552,500 plus HST for the balance of the term and held that he was not required to mitigate his damages. The Court of Appeal decided that the trial judge erred in law, clarifying that independent contractors on fixed-term contracts do have a duty to mitigate. However, because the employer failed to prove that the worker did not take reasonable steps to find new work, the Court of Appeal dismissed the appeal and upheld the $552,500 award.

S. v. Oz Optics Limited

Wrongful Dismissal: 6 Months Notice for 61-Year-Old Employee

This wrongful dismissal case addressed the appropriate common law notice period for a 61-year-old employee with 3.5 years of service in a specialized technical position. The court awarded six months' notice, finding the employee reasonably mitigated damages and that the employer failed to prove otherwise. Additionally, the termination clause was found void for non-compliance with the ESA, entitling the employee to full common law notice.

K. v. Gard-X Automotive Refinish Inc.

Wrongful Dismissal: Mitigation and Overtime Earnings

This is an appeal from a trial judge's decision in a wrongful dismissal case involving an employee dismissed with three months' working notice. The Divisional Court addressed whether the trial judge erred in calculating damages by excluding overtime earnings from the employee's new employment and whether surplus earnings reduced damages for a period of unemployment. The appellate court reversed the trial judge's decision, holding that all earnings from replacement employment should apply as mitigation.

B. v Cascades Canada ULC

Wrongful Dismissal: Mitigation and Retraining After 28 Years

This wrongful dismissal case addressed whether a plaintiff terminated after 28 years of service failed to mitigate damages by choosing to retrain as a welder rather than applying for comparable positions offered by the employer. The court applied the Michaels v. Red Deer College test, finding that the employer met its onus to show comparable positions were available and that the plaintiff could have procured them. Consequently, the plaintiff's entitlement to damages ended when they failed to seek available comparable employment, and the employer was not liable for retraining costs.

RJM56 Investments Inc. v. K.

Withholding Taxes on Settlement Funds in Trust for Costs

This is an appeal to the Court of Appeal from a judgment on an application and summary judgment motion about interpreting minutes of settlement. An employer and employee settled actions, with the employer agreeing to pay $250,000 for costs to the employee's lawyers in trust with no deductions, and $1,250,000 to the employee. Based on tax advice, the employer paid the costs amount without deductions but deducted the tax withholding for that amount from the employee's share. The application judge found the employer breached the minutes and ordered it to pay the deducted amount to the employee. The Court of Appeal allowed the appeal, finding the minutes were ambiguous and the employee suffered no loss because the withheld amount was remitted to the CRA to his credit.

R. v ZoomerMedia Limited

Severance Pay: Contractual Entitlements Not Subject to Mitigation

This is a summary judgment motion concerning a breach of employment agreement where the plaintiff sought severance and sabbatical payments. The court applied contract interpretation principles to determine that the plaintiff was entitled to these fixed contractual payments and was not required to mitigate damages for them. The court also rejected the defendant's argument that the plaintiff had waived these rights and dismissed claims for bad faith or aggravated damages due to lack of evidence of high-handed conduct.

410784 Ontario Limited v. Little Zinger Inc. (Corktown Esso)

Appeal Dismissed in Fiduciary Duty Case Over Secret Lease

This was an appeal to the Court of Appeal from a trial judgment dismissing a counterclaim by a former employer. The employer counterclaimed against two former employees, alleging breach of fiduciary duty after the employees negotiated a lease for the employer's premises behind its back. The trial judge found the claim statute-barred but stated that if it wasn't, she would have found a breach of fiduciary duty. The Court of Appeal upheld the trial judge's finding that the claim was statute-barred and dismissed the appeal.

M. v Motion Industries (Canada) Inc.

Constructive Dismissal: 16 Months Notice for Role Change

This constructive dismissal case involved a project manager whose role was fundamentally altered to an outside sales representative upon recall from lay-off. The court determined that the plaintiff was entitled to treat the employment as terminated due to the employer's failure to offer a comparable position and was not obligated to mitigate damages by accepting the ill-defined role. A sixteen-month notice period was awarded, with damages calculated based on lost commissions.

D. v. Great West Life Assurance Co. et al.

Disability Benefits: Employer Obligations & Mitigation

This case addresses the employer's obligations under an employee benefit plan regarding short-term and long-term disability benefits for an employee suffering from anxiety, depression, and panic disorders. The court found that the plaintiff was disabled under the plan and that the employer failed to provide necessary supports, including rehabilitation and workplace accommodations. Additionally, the court ruled that the denial of the short-term disability claim was unjustified based on medical evidence and that the plaintiff did not fail to mitigate damages by not pursuing therapy.

T. v. R.

Wrongful Dismissal: Stock Options Damages and Tax Gross-Up

A wrongful dismissal case where an employee was dismissed without cause and denied the opportunity to exercise stock options. The court is tasked with determining damages for the lost opportunity, considering valuation dates, the plaintiff’s financial circumstances, and whether the plaintiff failed to mitigate damages by purchasing equivalent shares on the open market.

W. v. Ritz Lutheran Villa

Wrongful Dismissal: 13.5-Year Employee Awarded 10 Months Notice

A wrongful dismissal case where an employee with 13.5 years of service was terminated without notice or severance for allegedly violating employer policies by accompanying a resident on a cruise. The court found the termination unjustified due to inconsistent policy application and lack of progressive discipline, awarded 10 months' notice, and calculated damages of $28,159.03 based on wages, benefits, and mitigation efforts.

Q. v. Reprodux Ltd.

Constructive Dismissal: Employee Claims Poisoned Work Environment Due to Racist and Homophobic Slurs

A constructive dismissal case where the plaintiff alleged a poisoned work environment due to racist and homophobic slurs. The court examined whether the plaintiff was constructively dismissed, whether he condoned the abusive conduct, whether his employment was continuous, and whether he adequately mitigated his damages.

C. v. Canac

Wrongful Dismissal: 20-Year Supervisor Awarded 18 Months Notice

A wrongful dismissal case involving a plaintiff who was employed for 20 years as a supervisor and was terminated due to business reorganization. The court awarded 18 months of reasonable notice, applying the Bardal factors. The plaintiff was also awarded overtime compensation during the notice period, while claims for pay increases and bonuses were dismissed due to insufficient evidence.

L. v. Dot Benefits

Wrongful Dismissal: Clerical Employee Awarded 9.5 Months Notice

A wrongful dismissal case where a plaintiff with nine and a half years of service was terminated due to restructuring and awarded nine and a half months' salary in lieu of notice. The court also addressed the enforceability of a termination clause in the employee handbook and whether the plaintiff was entitled to both disability and severance payments.

C. v. Corvex Manufacturing Ltd.

Just Cause: Manager's Relationship With a Subordinate

A wrongful dismissal case involving a senior manager with 19 years of service who was dismissed after a consensual sexual relationship with a subordinate he supervised, following an earlier written warning that further inappropriate conduct would be grounds for termination, and insubordination. The court found just cause for termination without notice. In case that finding was overturned, it assessed reasonable notice at 18 months, reduced to six months' damages for a 12-month failure to mitigate, and held that a clause limiting damages to the ESA minimums would not have applied.

Panimondo v. Shorewood Packaging Corporation

Wrongful Dismissal: Journeyman Pressman Claims 11 Months Notice

A wrongful dismissal case where a journeyman pressman with 11 years of service was terminated and received 9 ½ months’ severance, but claimed entitlement to 11 months’ notice. The court examined the reasonableness of the notice period under Bardal factors, the adequacy of the severance package, and whether the plaintiff failed to mitigate damages by delaying job search efforts.

Z. v. Canac Kitchens Ltd. (Kohler Ltd.)

Wrongful Dismissal: 16-Year Accounts Payable Clerk Awarded 13 Months Notice

A wrongful dismissal case where the plaintiff, an accounts payable clerk with 16 years of service, was dismissed without cause. The court determined a 13-month reasonable notice period based on Bardal factors and ruled on the plaintiff's duty to mitigate damages by seeking comparable employment. The plaintiff was also awarded $1,467 for replacement insurance costs during the notice period.

A. v. Liturgical Publications of Canada Ltd.

Wrongful Dismissal: 14-Year Employee Awarded 10 Months Notice

A wrongful dismissal case involving a plaintiff employed for over 14 years as a press operator, terminated without cause. The employer provided eight weeks’ pay in lieu of notice, but the plaintiff was awarded ten months’ salary in damages, applying the Bardal factors. The court also addressed the plaintiff’s efforts to mitigate damages by seeking alternative employment.