Andrew Vey Interviewed by The Lawyer's Daily
Vey Willetts lawyer Andrew Vey recently spoke with The Lawyer’s Daily for an article entitled “Appellate ruling confirms employers must lead evidence when disputing mitigation efforts: lawyers.“
The article considers the implications of a recent employment law decision from the Court of Appeal for Ontario (Lake v. La Presse 2022 ONCA 742). In Lake, the Court of Appeal overturned a summary judgment ruling in which the court reduced the amount of severance owing to a newspaper executive for failing to seek new employment in a more junior role.
In so doing, the Court of Appeal affirmed that dismissed employees are required to seek comparable re-employment; they are not required to seek out, and accept, lesser roles:
Specifically, the Court concluded:
The motion judge erred in principle when, at para. 65, she accepted that, in mitigation, after a reasonable period of attempting to find similar employment, a dismissed employee must begin searching for a lesser paying job (which was based on an obiter comment by a trial judge in Neilipovitz v. ICI Paints (Canada) Inc. (2002), 27 C.C.E.L. (3d) 256 (Ont. S.C.), at paras. 25-26), and then, at para. 68, she concluded that the appellant should have applied for a sales representative role if she continued to remain unemployed. The obligation of a terminated employee in mitigation is to seek “comparable employment”, which typically is employment that is comparable in status, hours and remuneration to the position held at the time of dismissal: Carter v. 1657593 Ontario Inc., 2015 ONCA 823, at para. 6. There was no obligation for the appellant, to seek out less remunerative work, including by working as a sales representative.
In speaking with The Lawyer’s Daily about this decision, Vey opined that “it’s a very sensible decision from the Court of Appeal…the big takeaway for me is it reaffirms long-standing principles with respect to the duty to mitigate.”
Vey further noted that the decision on appeal was concerning as it suggested that as a notice period goes on, an employee may be obligated to start looking for (and accepting) less and less comparable work. That said, “the Court of Appeal stomped down on that [suggestion] and said, ‘no, that’s incorrect’. The duty is to look for comparable work at all times.”
Vey Willetts LLP is an Ottawa-based employment and labour law firm that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in Ottawa and across Ontario. To speak with an employment lawyer, contact us at: 613-238-4430 or info@vwlawyers.ca.
