In Gannon v. Kinsdale Carriers, 2024 ONSC 1060, the Ontario Superior Court of Justice denied common law reasonable notice to an employee who was wrongfully dismissed from her employment on the basis that she failed to mitigate her damages when she rejected an offer of comparable employment. 

Background

The employee was 57 years old when her employer, a federally regulated transport company, permanently shut its doors and dismissed all employees due to COVID-19.  At the time of dismissal, the employee had been employed for 22 years and was in the role of accounts receivable/dispatcher/office clerk. The employee was paid her minimum termination entitlements under the Canada Labour Code (CLC), but she sought 22 months’ common law reasonable notice less the CLC entitlements and mitigation income earned.

The president of the employer provided the employee with contact information for another transport company (Company #2), which the employee contacted to inquire about a job opportunity.  The employee claimed that, at a meeting with Company #2, she was provided a job description for a full-time dispatcher; however, the president claimed that Company # 2 made an offer of employment.  In a text to Company #2 sent the day after the meeting, the employee stated that she had decided:

… at this point I don’t want to get back into dispatching. If there was a position for payables, or receivables I would be interested. I want to take this opportunity to explore what is out there and maybe take some on line courses.

The employee’s evidence was that no offer had been made as the meeting was simply “exploratory”; and if an offer was made, it did not constitute comparable employment because the role offered was full-time dispatcher and required evening and weekend work.  The employee claimed that she was never a full-time dispatcher at the employer and most of her work at the time of her dismissal was accounts receivable and/or office administration work.

The evidence of the president was that the work offered by Company #2 was dispatching and administrative work that did not require her to work evenings and weekends, similar to the employee’s work for the employer. 

Decision

The court determined that because the employee rejected an offer of comparable employment, she failed to mitigate the damages of her wrongful dismissal and, therefore, she was not entitled to common law reasonable notice.

The court noted that “comparable employment” is not identical employment but employment comparable in status, hours and remuneration to the position held at the time of dismissal. 

The court determined that a verbal offer had been made of comparable employment: dispatcher with ancillary office administration duties.  The court acknowledged that the employee was not obliged to accept a full-time dispatch position; however, it found that that is not what was offered. 

Although the employee attempted to minimize the dispatching duties she had with the employer, the court found that the employee occupied the role of dispatcher from 2015 to 2020; her job description was changed to “dispatcher” in late 2015; and when this change was made, she received a salary increase and her hours of work were increased.  The court noted further that the employee admitted that half of her working hours were dedicated to dispatch and that when the employer was busy, dispatch took priority over administrative duties.  The court also found that many of the administrative duties were closely associated with her role as dispatcher.

The court noted that the employee wanted to “see what’s out there” and pursue on-line courses.  It stated, however, that “it should not fall to the [employer] to fund her educational pursuits.”  The court then referred to a British Columbia decision¹ in which the court stated:

It cannot be the law that a dismissed employee can elect to take further training for self-employment and charge that to the employer, unless the employee cannot obtain alternate suitable employment.

Bottom Line for Employers

Kinsdale reinforces the principle that upon an employee’s wrongful dismissal, they have an obligation to reasonably mitigate their damages and will be found to have failed to do so if they reject an offer of comparable employment.  Moreover, Kinsdale reminds employers that an employer cannot be subject to a negative outcome on the mitigation issue if an employee unilaterally elects further education/training in lieu of a reasonable search for alternate suitable employment.