Wrongful Dismissal Actions: Contractually Fixed Terms of Notice and the Duty to Mitigate

In Bowes v. Goss Power Products Ltd., the Court of Appeal concluded that where an employee's pay in lieu of reasonable notice entitlement on a without cause termination is fixed by an employment contract, the employee does not have a duty to mitigate his or her damages by searching for comparable employment when his or her employment is terminated except where the contract itself provides for such an obligation.

In other words, where the presumption of reasonable notice at common law does not apply, an employer must insert a duty to mitigate into the employment contract and have the employee agree to it, to have it apply. In other words, it will not be implied into the contract by the court.

Robert H. Tanha, Employment Lawyer
"You want me on your side.  You need me on your side."
Equity Court Law Chambers
Woodbridge, Ontario
Serving the Greater Toronto Area
Tel: 416-706-5890
Fax: 905-851-9447
Email: robert.tanha.equitylaw@gmail.com 

* This article is provided for general information purposes and should not be considered a legal opinion.  Clients are advised to obtain legal advice on their specific situations.