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The Court of Appeal restored an eight-month notice period, finding the employer failed to prove the employee breached her duty to mitigate.
This is an appeal of a summary judgment in a wrongful dismissal action.
The motion judge had awarded the appellant damages equivalent to six months' reasonable notice, reduced by two months for failure to mitigate.
The Court of Appeal found that the motion judge erred in reducing the appellant's damages for failure to mitigate.
Specifically, the motion judge erred in principle by suggesting the appellant should have sought lesser-paying jobs and made a palpable and overriding error by concluding the appellant "aimed too high" based solely on job titles without considering comparable duties.
The Court emphasized that the employer bears a heavy burden to prove both that the employee failed to take reasonable steps and that comparable employment would have been found.
The appeal was allowed, and the damages were based on an eight-month notice period without the two-month reduction.
Defendant awarded $27,000 in partial indemnity costs after beating its early Rule 49 settlement offer.
Following a summary judgment motion in a wrongful dismissal action where the plaintiff was awarded approximately $97,500, the parties made submissions on costs.
The defendant had made an early Rule 49 offer to settle for $107,000, which the plaintiff did not accept.
Because the plaintiff recovered less than the defendant's offer, the court applied Rule 49.10(2) and awarded the defendant its partial indemnity costs from the date of the offer.
The plaintiff was ordered to pay $27,000 in costs to the defendant.
Summary judgment granted for wrongful dismissal; 8-month notice period reduced by 2 months for failure to mitigate.
The plaintiff, a 52-year-old general manager in the media industry, was terminated without cause after 5.5 years of employment.
On a motion for summary judgment, the court determined the reasonable notice period to be 8 months.
The court found the plaintiff was entitled to damages for her lost bonus, as it was an integral part of her compensation and not unambiguously excluded by her contract.
However, the notice period was reduced by 2 months because the plaintiff failed to take reasonable steps to mitigate her damages, having delayed her job search and applied almost exclusively for more senior roles.
