Employment lawyers spend a lot of time thinking about age. A worker’s age can have a myriad of implications, ranging from available training opportunities to the impact of different generational norms. Age is also frequently a focus in wrongful dismissal litigation. The seminal decision of Bardal v. Globe & Mail Ltd., 1960 CanLII 294 (ON SC) specifies that a worker’s age is one of the key components that must be assessed when determining dismissal entitlements.

Canadian courts have acknowledged that as workers age, they often become less competitive in the job market. Justice La Forest of the Supreme Court of Canada explained it this way:

Barring specific skills, it is generally known that persons over 45 have more difficulty finding work than others. They do not have the flexibility of the young, a disadvantage often accentuated by the fact that the latter are frequently more recently trained in the more modern skills. Their difficulty is also influenced by the fact that many in that age range are paid more and will generally serve a shorter period of employment than the young…

Consequently, older workers are frequently awarded larger severance entitlements, reflecting the expected difficulty they may face when seeking re-employment.

Mitigating loss in wrongful dismissal claims

An age-related topic that has received considerably less attention is how an individual’s age may interact with the duty to mitigate loss. It is a long-standing legal principle that dismissed workers are expected to actively search for comparable re-employment. Failure to make sufficient efforts in this regard provides a basis to reduce the amount of severance that may otherwise be awarded in wrongful dismissal litigation.

Yet, a recent decision from the Ontario Superior Court of Justice may well require employers to reconsider how they assess job searches efforts made by older former employees.

In Hettrick v. Triple F Paving Co. Ltd., 2021 ONSC 208, the Court considered a wrongful dismissal claim involving a 73 year old Bookkeeper/Administrator who lost her job after 21 years of service. She was awarded with severance equal to 18 months of compensation. Where Hettrick takes a surprising turn is with respect to mitigation. Specifically, in a very brief set of reasons, Justice Miller concluded that:

At age 73 when her employment was terminated, I find that Ms Hettrick had no duty to mitigate. [emphasis added)

In essence, the Hettrick decision stands for the principle that, at a certain age, employees may no longer be expected to seek re-employment in an attempt mitigate their dismissal-related losses.

How old is too old?

It is too early to say whether Hettrick will prove to be an outlier in Canadian employment law. Yet it also raises the question: how old is too old for a worker to be required to look for a new job? In reaching her decision in Hettrick, Justice Miller drew on a 2011 case out of New Brunswick (Potter v. New Brunswick Legal Aid Services, 2011 NBQB 296). Potter concerned a 66 year old employee who was not required by the Court to search for new work post-dismissal, in large part due to his age and the specialized nature of his employment. Is 66 years old then the threshold to relieve from the duty to mitigate?

Other cases, however, have taken radically different stances on the question of old age and mitigation. For instance, in Levy c. Standard Desk Inc., 2012 QCCS 3471, a 75 year old Quality Control Inspector was found at trial to have failed to mitigate his losses by not accepting an offer of re-employment. ^[1] Old age alone did not relieve from the duty to look for new work.

Another approach was taken in Dodge v. Signature Automotive Group Ltd., 2014 BCSC 1452. Dodge concerned a 60 year old Financial Services Manager who made little effort to look for a new job post-dismissal. Yet, in reaching its decision, the Court took into consideration the employee’s age to limit the practical effect of the inadequate job search. The Court explained its rationale at paragraph 36:

…the fact that Mr. Dodge is 60 means that it was less likely that alternative employment would have been achieved.  It is only for that reason that I have not reduced more substantially the applicable notice period. [emphasis added]

Takeaway

What should we make of this mess of inconsistent cases from across Canada? At a minimum, employers should be aware that old age (a term that is itself open to interpretation) may act as a shield in the face of an otherwise lacklustre job search made by a former employee. As such, the Hettrick decision demonstrates yet again the need for employers to carefully assess the individual circumstances of employees when involved in wrongful dismissal litigation and to avoid relying on a one-size-fits all approach.

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[1] Note: the Levy trial decision was later overturned on appeal, albeit on the basis that the job offer in question was determined to not provide comparable re-employment.