Author: Lindy Herrington
In a recent Court of Appeal decision the Court provides guidance on what is considered reasonable steps at mitigation.
Lake v. La Presse, 2022 ONCA 742
Facts
Ms. Lake worked at La Presse as a General Manager for 5.5 years when she was terminated without cause. She was 52 years old and was making $185,000 a year at the time of her termination. She began looking for new positions shortly after she was terminated but remained unemployed on the date of the Summary Judgment motion 2 years later.
Ms. Lake filed a wrongful dismissal action against her employer. At issue before the court on Summary Judgment was whether the common law notice period should be reduced for her failure to mitigate her damages.
The court on Summary Judgment held that she had not taken reasonable steps to mitigate because she:
- waited too long to begin her job search;
- had not applied to enough jobs; and
- “aimed too high” in applying for VP roles.
The motion judge found that she had unreasonably limited her job search by only applying to higher paying positions and should have applied for lesser roles as she remained unemployed. As a result, the court reduced her common law notice period from 8 months to 6 months.
Ms. Lake appealed.
Decision
The Court of Appeal allowed the appeal and reversed the 2 month notice period reduction.
The court found that the motion judge erred in finding that after a reasonable period of attempting to find similar employment, a terminated employee must apply for lesser paying jobs. The court clarified that the duty to mitigate requires a terminated employee to seek “comparable employment”, which is generally employment comparable in status, hours, and renumeration to the position they were terminated from. The court further found that the plaintiff did not “aim to high” in her mitigation efforts, having applied for positions that matched her work experience and qualifications.
The court further affirmed that the employer bears the onus of proving a terminated employee failed in their duty to mitigate and would have obtained comparable employment had they made reasonable efforts. In the within matter, no evidence was adduced by the employer to demonstrate that the plaintiff would have found comparable employment during the notice period if she had taken other steps. Whereas the plaintiff provided evidence of significant mitigation efforts including career coaching, networking, and online job searches.
Key Takeaways
The duty to mitigate requires an employee to seek comparable, not lesser employment.
Even if an employer can prove a terminated employee did not take adequate steps to mitigate damages, employers must still provide evidence that an employee would have secured comparable employment, had reasonable steps been taken.