November 14, 2016
A 58 year old employee of the City of Toronto was constructively dismissed, following 25 years of service in primarily senior project management roles. She was found to be entitled to 26 months’ notice. The City did not appeal the finding of constructive dismissal or the notice period. It did, however, allege that the trial judge erred in the conclusions reached relating to mitigation.
The City argued, inter alia, that the employee had an obligation to accept the lesser role and/or apply for other roles within the City, both of which she failed to do. It asserted, therefore that she failed to mitigate her damages, in whole, or in part. It also asserted her failure to apply for a job with another township, over 50 km away which was available, was a failure to take reasonable steps to mitigate, as was her taking several weeks away from searching for work to attend the trial of the person accused of murdering her brother.
The Court of Appeal held that considering the totality of circumstances, including a substantial change in the employee’s duties from mainly operational to administrative, it was reasonable for her to consider her treatment by the City as humiliating and her relationship with the City to have been irreparably harmed. The Court of Appeal held that she did not have an obligation to accept the role offered, nor did she have an obligation to mitigate her damages by applying for other roles with the City.
The Court further held that failing to apply for a role 50 km from home, or taking some time to attend the trial of the person accused of murdering her brother did not constitute a failure to mitigate.
This decision underscores the approach by the Court to the assessment of mitigation efforts. The ‘tie’ goes to the employee. Employees’ mitigation efforts must only be generally “reasonable”, not perfect, and the actions of the employer can destroy trust of the employee to further reduce those mitigation obligations.
Maasland v. Toronto (City), 2016 ONCA 551 (CanLII)