Recent Developments: An Employee's Duty To Mitigate

Canadian Courts have recently considered different aspects of an employee's duty to mitigate their damages resulting from a wrongful dismissal. These decisions of the Supreme Court of British Columbia and the Ontario Court of Appeal provide helpful guidance as to the nature of the duty and the significance of the type of the new employment obtained.

In Schinnerl v Kwantlen Polytechnic University, 2016 BCSC 2026, the BC Supreme Court considered whether a dismissed employee's acceptance of a part-time position and refusal of full-time employment constituted a failure to mitigate. The plaintiff, 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 Ms. Schinnerl to conduct reasonable job searches to obtain alternative employment. Furthermore, the offer stipulated that if she were to find employment with a public sector employer and receive less than her salary with Kwantlen, Kwantlen would pay her the shortfall during the remainder of the 10 month continuation period. Ms. Schinnerl did not accept the offer, but Kwantlen began to pay her in accordance with the terms of its offer.

Approximately 3 and a half months after the termination of her employment by Kwantlen, the plaintiff found employment with Douglas College and accepted a position 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 the termination of her employment from Kwantlen.

Kwantlen ended the plaintiff's salary continuation after three months when she started her new job with Douglas College. At trial, Kwantlen argued that it was unreasonable for her to decline the opportunity to work full-time, and therefore Kwantlen's obligation to pay her a salary in lieu of notice ended when she began working at Douglas College. Ms. Schinnerl argued that it was reasonable for her 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 Ms. Schinnerl's interests to work part-time instead of full-time. However, this was a separate matter from her duty to mitigate the damages arising from the loss of her employment with Kwantlen. At paragraph 36...