In Humphrey v.
FACTS
In this case, the employee was employed by the Company for approximately three years. At the time of her dismissal, the employee was 32 years old and held the position of Chief Operating Officer ("COO"). The employee remained unemployed up until the date of the motion for summary judgment. The motion judge awarded the employee damages of
The employer appealed and asserted that the motion judge erred in 3 ways: (1) in determining the period of reasonable notice; (2) in her approach to and conclusions about mitigation; and (3) in concluding that the employee was entitled to aggravated and punitive damages, as well as in her assessment of the quantum of such damages. The employee cross-appealed asserting that the motion judge erred in her approach to punitive damages and sought an increased amount.
DECISION
The Court of Appeal allowed the employer's appeal on the mitigation issue but dismissed the remaining grounds of appeal and the employee's cross-appeal. In arriving at this decision, the
In its analysis, the Court found that the motion judge erred when she concluded that the employer "... had failed to establish that a position [the employee] was offered seven months after her termination was "comparable" for the purpose of mitigation" (para 5). The Court of Appeal focused on the determination of what was "comparable".
The evidence revealed that the employee did not accept an offer of VP E-Commerce that she received in or around
In determining that the motion judge erred, the
[57] With respect, the motion judge set the bar too high on the issue of mitigation in addressing this evidence. Comparable employment does not mean identical employment. It means "a comparable position reasonably adapted to [the plaintiff's] abilities": Link v.
[58] In these circumstances, it is difficult to conceive of what further evidence an employer could adduce to establish that an employee has unreasonably rejected an offer of comparable employment. In her mitigation journal, [the employee] recorded six meetings or other interactions, over the course of about a month, with this prospective employer. The mitigation journal made no mention of a job offer, and simply noted that the company's response was: "Company determined too early-stage to hire; may reach out in future". [The employee] in fact received an offer of employment in
[59] In my view, the availability of this comparable role seven months post-termination means that [the employee] turned down a position that could reasonably have mitigated her damages. While the onus on a defendant in this context is a heavy one, on the evidence before the motion judge, [the employer] met its obligation of demonstrating that [the employee's] damages for the balance of the notice period could reasonably have been avoided. [The employee] had no obligation to accept the offer made to her, but the effect of her rejection of this comparable position was to limit her recovery from [the employer] for compensation in lieu of notice to the point at which this comparable job offer was made, seven months post-termination.
As a result, the
KEY TAKEAWAYS
This is a welcome decision for employers as it demonstrates the type of evidence that is required to establish that an employee has failed to mitigate their damages. Although there is a heavy onus on an employer to demonstrate that an employee has failed to mitigate their damages, an employer may meet this threshold where they can establish that the employee rejected an offer of employment for a position that was comparable in both compensation and character. Importantly the job does not have identical in either aspect to qualify as a reasonable mitigation option.
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Mr
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