Wrongful Dismissal and Mitigation

If you have been wrongfully dismissed, the most important thing you should do (aside from seekng legal advice to determine whether or not you would have a legal remedy) is to properly attempt to mitigate your damages.

“Attempting to mitigate your damages” effectively means searching for new work. What a court wants to see in a wrongful dismissal matter is that the terminated employee has diligently attempted to find a new job.

While methods of demonstrating this vary somewhat, the most common way to prove that you have been seeking new work is to keep record of your jobs applied for and searched for, as well as any interviews you have attended. This can be done in a spreadsheet style document, and supporting documentation (i.e emails from prospective employers) can be included in your proof as well.

Consequences of Not Mitigating

In order to ensure that you receive a higher cost award at trial, it is essential that you mitigate “to the best of your ability”, a principle supported in the case of Bardal v. The Globe & Mail Ltd ([1960] O.W.N. 253, 24 D.L.R. (2d) 140 at paras 143-44).

Just how much can a failure to mitigate cost you in court?

In the case of McGeady v. Saskatchewan Wheat Pool ([1999] S.J. No. 647), four months were deducted off of the notice period for the Plaintiff’s failure to mitigate.

Similarly, in the case of Ceccol v. Ontario Gymnastic Federation [2001] O.J. No. 3488, four months was again deducted from the total notice period for a failure to mitigate.

In the case of Woloshyn v. Cyan Holdings Ltd., [2013] S.J. No. 188, only three months was deducted, as the Plaintiff was found to have not been “seriously looking for alternate employment”.

While a court may be more inclined to deduct less if some efforts were made to mitigate, this is not guaranteed and so it is important to ensure that you begin applying for jobs after you are terminated, and keep notes of such applications. Even if you have been with a company for years prior to termination, you still risk losing a significant portion of notice if you fail to adequately mitigate.

Exceptions to a Duty to Mitigate

Although rare, there have been cases wherein the court has recognized that mitigation was next to impossible or very difficult for a terminated employee to do effectively.

In the case of Munoz v. Canac Kitchens, a Division of Kohler Canada Co. [2008] O.J. No. 4774, a deduction for lacklustre mitigation efforts (16 job applications over a 6 month period) was not made as the court agreed that the Plaintiff’s language barrier and his age made it difficult for him to effectively mitigate.

In Blackburn v. Victory Credit Union Ltd. [1998] N.S.J. No. 11, the court discharged the Plaintiff of his duty to mitigate, citing his disability as rendering him “unsuitable for employment”.

Ongoing Advice

In a wrongful dismissal matter, it is important to be prepared. An employment lawyer can give you advice as to whether or not you have a case, and if so, assist you in establishing mitigation records as well as any other preparatory documentation from the beginning. Contact us for a free phone consultation.

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