"If It's Good Enough For You, It's Good Enough For Me", Says Ontario Court Of Appeal: Employee's Notice Period Reduced For Failing To Accept A Comparable Position

• Published date: 25 August 2022
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Employment Litigation/ Tribunals, Trials & Appeals & Compensation
• Law Firm: CCPartners
• Author: Mr Jacob Love

In Humphrey v. Mene Inc., 2022 ONCA 531, the Court of Appeal for Ontario addressed the employer's appeal and employee's cross appeal of the decision by the motion judge in Humphrey v. Mene, 2021 ONSC 2539.

FACTS

In this case, the employee was employed by the Company for approximately three years. At the time of her dismissal, the employee was 32 years old and held the position of Chief Operating Officer ("COO"). The employee remained unemployed up until the date of the motion for summary judgment. The motion judge awarded the employee damages of $81,275.45 (in lieu of 12 months' notice less one month's compensation for unreasonable mitigation and the ESA amount she had already received), as well as aggravated damages of $50,000 and punitive damages of $25,000.

The employer appealed and asserted that the motion judge erred in 3 ways: (1) in determining the period of reasonable notice; (2) in her approach to and conclusions about mitigation; and (3) in concluding that the employee was entitled to aggravated and punitive damages, as well as in her assessment of the quantum of such damages. The employee cross-appealed asserting that the motion judge erred in her approach to punitive damages and sought an increased amount.

DECISION

The Court of Appeal allowed the employer's appeal on the mitigation issue but dismissed the remaining grounds of appeal and the employee's cross-appeal. In arriving at this decision, the Court of Appeal reiterated that the burden is on an employer to establish a failure to mitigate damages and that "the question is 'whether [the employee] has stood idly or unreasonably by, or has tried without success to obtain other employment'" (para 53).

In its analysis, the Court found that the motion judge erred when she concluded that the employer "... had failed to establish that a position [the employee] was offered seven months after her termination was "comparable" for the purpose of mitigation" (para 5). The Court of Appeal focused on the determination of what was "comparable".

The evidence revealed that the employee did not accept an offer of VP E-Commerce that she received in or around October 2019. The motion judge noted that when cross-examined, "[the employee] explained that her initial conversations with this potential employer contemplated a broader role in senior management, and that she declined the offer because it was not for a broad-based senior leadership role" (para 56). The motion judge consequently concluded that the...