Why claiming a failure to mitigate for a 35 year employee is almost futile

Why claiming a failure to mitigate for a 35 year employee is almost futile

In Wall v M.H. Roe Sheet Metal (no CanLII citation yet), Justice Kumaranayake of the Ontario Superior Court found the proper notice period for a 56 year old Office Administrator with 35 years’ service was 24 months.

The only real issue was the Defendant’s allegation that the Plaintiff failed to conduct a reasonable job search thus the notice period should be reduced.

The Judge pointed out that the Defendant must prove that the Plaintiff conducted a less than reasonable search AND that if she had done so she would have obtained comparable employment.

In reviewing the evidence the Judge made the following rulings with respect to finding that she had not failed in her mitigation efforts:

  1. The Defendant sent the Plaintiff 5,000 job leads; however, many of these were jobs for which the Plaintiff was unqualified.
  2. The Plaintiff did apply for 59 jobs, but was not granted a single interview.
  3. The Plaintiff had worked for this single employer since age 21. She only had high school and her computer skills were poor.
  4. The Plaintiff did not look for a job in the first 4 months because she was in shock, did not have a computer and this was the time of the COVID lockdown.
  5. Although she turned down the Defendant’s offer of outplacement counselling, because this service would have obligated her to accept temporary work, she was allowed to refuse the service.
  6. The Defendant offered the Plaintiff $1,400 towards career counselling, but provided no company names that would provide such a service for that price.

My comments:

The Plaintiff made $3,515 per month. Even if the Defendant had got the notice period down to say 20 months, that would have saved them $14,060. I suspect that even without considering any Rule 49 Offers, the Plaintiff will easily get a cost award in excess of $25,000.

I would love to know what the last offers were made before trial. Maybe when the cost decision comes out, we will know.

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