You Can't Always (Do) What You Want: Judge Finds Failure To Mitigate For Choosing New Career

Since the Supreme Court of Canada ruled in Evans v. Teamsters, much has been made about the issue of mitigation. That decision, a positive one for employers, established a new standard in wrongful dismissal cases for when employees would be deemed to have failed to mitigate: essentially saying that except in extreme cases of a breakdown in the employment relationship, if an employee refused an alternative-employment offer from his or her employer then he or she has failed to mitigate.

In another positive development for employers, a recent case out of British Columbia may offer a new wrinkle: where an employee takes him- or herself out of the job market to switch careers, he or she may have failed to mitigate.

In Steinebach v. Clean Energy Compression Corp., 2015 BCSC 460, the 49-year-old plaintiff had worked his way up from service technician to Vice President Business Development Canada during his 19.5 years with the company. When a new...