Call us for a FREE 30 minute phone consultation at 416-907-9249 or submit a callback request
In employment law there is a responsibility on the plaintiff to mitigate their damages by trying to find another job. However, the onus lies with the defendant to prove that the plaintiff did not sufficiently mitigate their damages. The defendant in this case took this too far, when they severely interfered with the mitigation efforts of their former employee.
In the case of Ste-Croix v. Al-Hashimi and Jawad Dentistry, 2017 ONSC 7447 (CanLII), the plaintiff was employed by the defendant as a medical office receptionist and administrative assistant for 17 years. She argued that she was wrongfully dismissed and therefore she was entitled to reasonable notice over 8 weeks, as per common law, and brought a claim against the employer for damages.
There were two issues at the trial: what was the appropriate number of months of notice or pay in lieu of notice, and whether or not the plaintiff reasonably mitigated her damages. On the first issue, based on the plaintiff’s Bardal factors and comparable cases, Justice Morgan determined that she was entitled to approximately 12 – 15 months of notice. As for her mitigation efforts, the plaintiff claimed that she had applied to 112 jobs in 15 months, applying to 4 – 5 jobs per day.
The defendant disputed this claim by presenting evidence that they had found 2179 alleged receptionist postings online that the plaintiff could have applied to. However, upon further investigation by the plaintiff and an analysis by Justice Morgan it was confirmed that the defendant did not properly research these positions, as most of them were duplicates, or they required different skills, or they were out of province and country. Furthermore, the plaintiff argued that the defendant did nothing to help with her in her new job search efforts as the employer never provided her a reference letter, nor did they guide her towards a specific opportunity in her area of expertise. Even more appalling was the fact that the defendant’s lawyer had breached the plaintiff’s right to privacy, when he had his law clerk called the plaintiff’s perspective employers and asked them if the plaintiff had actually applied for a job. Once the perspective employer heard that the plaintiff was in the middle of litigation, it obviously hindered her chances of getting a job there. After all of this evidence was presented, the Justice determined that the plaintiff had met her mitigation efforts, therefore she was entitled to 12 months notice plus her legal costs, totalling $ 46,246.79.
This case highlights why it may not be a good idea for defendants to call out the plaintiff’s mitigation efforts, especially if they have not done their due diligence and research regarding the job search records. Furthermore, had the Plaintiff not applied to 112 jobs in the 15 months she had been unemployed, the Justice may have reduced her notice period to account for her failure to mitigate. It is important to make best efforts when looking for a new job once terminated to maximize your entitlements upon termination.
If you have been terminated from your employment and are looking for assistance in receiving an expanded severance package, contact Monkhouse Law today for a free 30-minute consultation in order to explore your options.
To arrange your free confidential 30 minute phone consultation make sure to contact us today.