FAQ's Cases - Stewart McKelvey

Page: 8endorsement released on July 25, 2011, the application judge held that theappellant was “obliged to mitigate” and was entitled to only the statutoryminimum paid by the respondent.[21] The application judge began the analysis section of his endorsement bystating: “It is well established that in wrongful dismissal cases where there is aclaim for damages, employees are obliged to mitigate in the absence of2012 ONCA 425 (CanLII)agreement to the contrary.” He noted that, although it is open to the parties toagree that the duty to mitigate does not apply, either expressly or by implication,this obligation to mitigate does not arise as an implied term of the agreement butrather as a principle of damages. The issue in the present case, he stated, iswhether the same principle applies where an employment agreement contains aspecified “period of reasonable notice.”[22] Applying the decision of Nordheimer J. in Graham v. Marleau, LemireSecurities Inc. (2000), 49 C.C.E.L. (2d) 289 (S.C.), which the application judgefound “at this point to be settled law [in Ontario]”, the application judge concludedthat the duty to mitigate applied to the calculation of damages. He held that:“[T]he mere fact that the parties have agreed on the period of reasonable noticedoes not mean that the obligation to mitigate is ousted by agreement.” In theresult he found that the respondent’s interpretation of the EmploymentAgreement was the correct one.