Overholt Law Newsletter August 2017 The Meaning Of Mitigation: Recent Legal Developments

Canadian courts have recently revisited the issue of employee mitigation in wrongful dismissal proceedings. Two cases from BC and Ontario illustrate what an employee's obligations are to mitigate his or her losses during the reasonable notice period, particularly where unique factors are present. These cases help clarify what reasonable steps are required in order for an employee to discharge their duty to mitigate.

British Columbia: Schinnerl v Kwantlen Polytechnic University1

The BC Supreme Court recently considered whether the election of part-time over full-time employment constitutes a failure to mitigate.

A 48 year old employee with 8.5 years of service was dismissed without cause and offered salary and benefits continuation for a period of 10 months. As part of the offer, the defendant, Kwantlen Polytechnic University ("Kwantlen"), required the employee to conduct reasonable job searches to obtain alternative employment. Furthermore, the offer stipulated that if the employee were to find employment with a public sector employer and receive less than her salary with Kwantlen, Kwantlen would pay the employee the shortfall during the remainder of the 10 month continuation period. The employee did not accept the offer, but Kwantlen began to pay the employee in accordance with the offer's terms.

The employee later found employment with Douglas College. However, the employee elected to work on a part-time basis so that she could also pursue doctoral studies. Had she accepted full-time employment, her salary would have been more than what she was earning at the time of her termination of employment from Kwantlen.

Kwantlen ceased payment to the employee after three months and after the employee started her new job with Douglas College. At trial, Kwantlen argued that it was unreasonable for the employee to decline the opportunity to work full-time, and therefore any obligation for Kwantlen to pay salary in lieu of notice ended when she began working at Douglas College. The employee argued that it was reasonable to work part-time in order to facilitate her doctoral studies. It was "in her own interests" to work part-time and pursue her education concurrently.

The Trial Judge agreed that it may have been in the employee's interests to work part-time instead of full-time. However, this was a separate matter from her duty to mitigate her damages arising from the loss of her employment with Kwantlen. At paragraph 36:

By turning down full-time work...