Wrongful Dismissal Actions: Duty to Mitigate by Returning to Work for the Same Employer?!

Sounds strange, but such a duty in law exists for non-unionized employees who find themselves wrongfully dismissed.

I kid you not. But, thankfully, it is not an absolute duty.

In Evans  v. Teamsters Local Union No. 31, 2008 SCC 20 (CanLII), 2008 SCC 20, [2008] 1 S.C.R. 661, Bastarache J. speaking for the Supreme Court set out the relevant law, as follows:

This Court has held that the employer bears the onus of demonstrating both that an employee has failed to make reasonable efforts to find work and that work could have been found (Red Deer College v. Michaels, 1975 CanLII 15 (SCC), [1976] 2 S.C.R. 324). Where the employer offers the employee a chance to mitigate damages by returning to work for him or her, the central issue is whether a reasonable person would accept such an opportunity. In 1989, the Ontario Court of Appeal held that a reasonable person should be expected to do so "[w]here the salary offered is the same, where the working conditions are not substantially different or the work demeaning, and where the personal relationships involved are not acrimonious" (Mifsud v. MacMillan Bathurst Inc. 1989 CanLII 260 (ON CA), (1989), 70 O.R. (2d) 701, at p. 710). [Emphasis added.]

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.