Skip to Content

Employee failed to mitigate by retraining rather than apply for comparable roles available at former employer

Jurisdiction: - Ontario
Sector: - Manufacturing

In Benjamin v Cascades Canada ULC, 2017 ONSC 2583, a decision issued on April 27, 2017, the Superior Court of Justice - Ontario found that the plainitff former employee, Benjamin, failed to reasonably mitigate his damages by choosing to retrain rather than apply for the comparable positions available to him at his former employer, Cascades.

Specifically, the court stated:

[161]      It is not contested that there were comparable jobs available for Benjamin to seek at Cascades, given the comparable remuneration and his work experience as an unskilled general labourer. It is not contested that Benjamin "could have" procured any of the three available comparable positions.

[162]      On the facts of the present case, the evidence meets the even higher threshold (which I do not find appropriate) that Benjamin "would likely" have obtained a position with Cascades if he had applied. Benjamin had 28 years' experience with Cascades as a general labourer, and there was no evidence of any concern with his performance. I accept the unchallenged evidence of Carrick, a human relations specialist within Cascades, that Benjamin was "likely" to obtain both the "labour pool" and "spare" positions at Cascades had he applied.[15]

[163]      Carrick's belief that Benjamin could have secured any of the available positions, and would likely have secured either the "labour pool" or "spare" positions, is reasonable and supported by the evidence.

[164]      Instead, Benjamin chose not to apply for the comparable positions at Cascades. His evidence that he did not apply because "none of the jobs I was qualified for (unskilled labour) were paying anywhere close to the $80,000+ I was making at Cascades", is not supported by the uncontested facts on this summary judgment motion. Benjamin earned approximately $75,000 plus benefits in 2015, and all of Cascades' positions were available at comparable remuneration.

[165]      The only reasonable inferences to draw from Benjamin's evidence is that:

(i)                 he did not consider the Cascades' opportunities at all, since he had decided by early June 2016 that he would seek retraining as a welder rather than return as an unskilled labourer, or

(ii)               his review of the available opportunities was not reasonable as there is no evidence of any inquiries he made as to the available positions which he knew (or ought to have known) about from the Cascades' newsletter of May 18, 2016.

[166]      Under either conclusion, Cascades met its onus to establish that Benjamin did not meet his obligation to reasonably mitigate his damages by applying for the available comparable positions.

[167]      Consequently, I find on the facts of this case that Benjamin "could have procured other employment of an approximately similar kind reasonably adapted to his abilities", but did not "exercise ... proper industry in the search (Michaels, at para. 11).

[168]      As in Cimpan, Benjamin made his choice to retrain for personal reasons. He wanted to obtain more control of his hours and he was worried about future job security by remaining as an unskilled labourer given his beliefs about changes in Ontario's manufacturing sector and the economic conditions at termination.

[169]      However, as in Cimpan, Benjamin had comparable positions available that he could have procured. His concerns about hours and security were related to his employment as an unskilled general labourer, a position which remained available to him after termination. Benjamin was not entitled to charge his retraining to Cascades, when the retraining was to "update my skills from general labour to skilled labour", so that he would no longer be "at the bottom of the food chain".

[170]      For the above reasons, the facts of the present case are similar to those in Cimpan and Chawrun. As of the beginning of June 2016, when Benjamin made the decision to enroll in his program, he made the deliberate decision not to investigate or apply for any comparable employment. He made no efforts to obtain such employment. He deliberately did not (or did not reasonably) investigate job opportunities which he could (and even likely)  procured, with comparable, if not superior, remuneration for positions for which he was fully qualified given his experience of 28 years in general labour.

[171]      Consequently, Cascades established that Benjamin failed to reasonably mitigate his damages.

[172]      Benjamin's entitlement to wrongful dismissal damages ended as of the date on which he unreasonably made the decision not to apply for a comparable job which he could have procured and instead decided to enroll in the welding course. Consequently, Benjamin has no recoverable damages (under the principles discussed above) following early June 2016 (or at the latest July 2016)[16] due to his failure to mitigate commencing at that time.

[173]      Benjamin received a total of $44,865.18 in pay in lieu of notice of termination and severance payments, which represented approximately 8 months of salary. Consequently, as Benjamin received his salary up to January 2017, well after he failed to mitigate his alleged damages when he decided to enroll in full-time school in June 2016 (or when the labour pool position was filed in July 2016), Benjamin is not entitled to any additional amounts in respect of claimed damages for common law notice.

[174]      Finally, for the reasons discussed above, I do not accept Benjamin's argument that it is appropriate to fix common law notice at 24 months (or any other number that might be reasonable based on the case law), and then deduct the 8 month period between June 2016 and the end of February 2017 when Benjamin made no attempts to find work, given the evidence of the postings at Cascades with comparable work and remuneration. Such an award would not be consistent with the principles in Michaels and the other case law I discuss above.