Fixing the Duty to Mitigate

(c) istock/AndreyPopov

Is an employee, who is terminated without cause, required to mitigate his or her loss when entitled to a fixed term of notice or pay in lieu, and the contract of employment is silent with respect to mitigation?

In reasons for decision released June 21, 2012, Bowes v. Goss Power Products Ltd., 2012 ONCA 425, the Court of Appeal for Ontario answered that question in the negative.

Employee Should Have Taken Test Drive

Car dealerships have no shortage of gimmicks to get potential buyers to take a ‘test drive.’  The sales theory goes that if someone tries a car, he is more likely to buy it.  “There is no harm in testing it out,” the dealer will claim.  A recent Ontario Superior Court ruling concerning a car dealership parts and service manager’s constructive dismissal case appears to confirm that as much might be true.

 

In reasons released June 15, 2012, Ghanny v 498326 Ontario Limited, 2012 ONSC 3276, the Honourable Justice Edward Belobaba held that an employee that refused a similar job at the same rate of pay had failed to mitigate his damages with the result being that his wrongful/constructive dismissal claim was dismissed and he was ordered to pay costs of $15,000 to his employer.