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Duty to Mitigate

"Mitigation in Wrongful Dismissal: 30 Years after Michaels v. Red Deer College"

Jurisdiction: - British Columbia

Christopher R. Forguson, of TevlinGleadle Employment Law Strategies, presented a paper on "Mitigation in Wrongful Dismissal: 30 Years after Michaels v. Red Deer College" (April 2008) at the Employment Law Conference - 2008. The conference was held in Vancouver and organized by the Continuing Legal Education Society of BC.

Supreme Court of Canada clarifies when duty to mitigate requires returning to work with same employer

Jurisdiction: - Yukon
Sector: - Unions

In Evans v. Teamsters Local Union No. 31, 2008 SCC 20, which involved a long-serving business agent of the Teamsters Local Union No. 31, the Supreme Court of Canada clarified that there is no principled reason to distinguish between wrongful dismissal and constructive dismissal situations when evaluating the employee's duty to mitigate his or her damages.

Although in some instances the relationship between the employee and the employer will be less damaged where constructive rather than wrongful dismissal has occurred, this will not always be the case. The nature of the employee/employer relationship will need to be assessed on a case by case basis when evaluating the reasonableness of the employee's mitigation efforts.

Under both scenarios, it will be necessary in some circumstances for the dismissed employee to mitigate his or her damages by returning to work for the same employer.

As further set out in the case headnote:  read more »

"Current Issues in Mitigation: The Duty to Mitigate in the Face of a Constructive Dismissal or Re-Employment Offer"

Jurisdiction: - British Columbia

Shanti P. Reda and Suzanne M. Forestell, of Kent Employment Law in Vancouver, have written a paper on "Current Issues in Mitigation: The Duty to Mitigate in the Face of a Constructive Dismissal or Re-Employment Offer" (August 2007) which they presented at the 2007 British Columbia Employment Law CLE.

"Dismissal and the Calculation of Notice of Termination: Beware of Company Policies!"

Jurisdiction: - Quebec
Sector: - Transportation

Quebec lawyer Dominique Launay has written an article on, "Dismissal and the Calculation of Notice of Termination: Beware of Company Policies!" (Winter 2006-07).

It addresses the Quebec Court of Appeal's decision in Aksich v. Canadian Pacific Railway, 2006 QCCA 931, which concerned the intersection of the employer's termination policy and article 2091 of the Civil Code of Québec

"Discipline and Discharge In Quebec At the Birth Of The New Millenium"

Jurisdiction: - Quebec

Quebec lawyer Theodore Goloff has written a comprehensive employment law paper entitled, "Discipline and Discharge In Quebec At the Birth Of The New Millenium" (undated).

The paper's Preface reads as follows:

Canada's constitution divides responsibility with respect labour relations and some areas of employment law between the federal and provincial parliaments. Unlike the U.S., the presumptive jurisdiction in labour and employment is provincial, not federal, and this whether the employer opera tes nationally or not. Because property and civil rights are assigned by the Canadian constitution to provincial jurisdiction, the law of contract, and per force the laws that govern the making, enforcement and termination of employment contracts are governed by the laws of the province in which the matter arises.  read more »