December 19, 2018
Simon published a blog post exploring the Ontario Court of Appeal’s recent decision in Brake v. PJ-M2R Restaurant Inc. (2017) ONCA 402. This case comment examines the Ontario Court of Appeal’s most recent decision on the issue of mitigation in wrongful dismissal. Typically, when an employee is terminated by his/her employer, he/she has a positive obligation to mitigate his/her damages by looking for alternate work. It is a well-established principle of wrongful dismissal that any income earned during the notice period is subtracted from what the company owes. However, in this case, the Ontario Court of Appeal held that income earned by the Plaintiff during the statutory notice period and certain “inferior” income earned out of necessity should not be deducted from her damages which changes the typical approach to assessing mitigation income. In particular, this decision will have a significant impact on the duty to mitigate of all employees but specifically non-managerial ones who are forced to accept inferior work once they are terminated from their positions. Click here for a detailed account of this decision.