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Alberta Wrongful Dismissal: A Case on Mitigation

The Recent Alberta case of Brown v. Hrt Motors Inc. (2020 ABQB620) looks at the issue of mitigation. Mitigation is the rule that basically says that a fired employee has to make reasonable efforts to find commensurate similar employment. If the employee does not make the efforts to find a suitable job, their damages are reduced to that extent. If they do find a similar job, their damages are also reduced. The Court said at paragraph 85:

[85]  .... The law defining the duty to mitigate does not require an out-of-work person to take the first table scraps of employment that come to them, even if the job title is nominally the same as what they held before. Our Court of Appeal made that point definitively in Christianson.  That statement of law is consistent with the approach taken by the BC Court of Appeal in Forshaw v. Aluminex Extrusions, [1989] (BCJ CA) No. 157, where it was said that:

The duty to act reasonably in seeking and accepting alternate employment cannot be a duty to take such steps as will reduce the claim against the defaulting employer, but rather must be a duty to take such steps as a reasonable person in the dismissed employee’s position would take in his own interest to maintain his income and his position in his industry, trade or profession. The former employer cannot have any right to expect that the former employee will accept lower paying alternate employment with doubtful prospects and sue for the difference between what he makes at that work and what he would have made, had he received the notice to which he was entitled.

Employer counsel sometimes make the argument that employees must seek any work- this is not the case. If you have been terminated and required advice, please feel free to contact us.

The information contained in this article is not legal advice. No solicitor client relationship is formed through this article. The reader is encouraged to retain counsel for advice in these matters.

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