Why Claiming a Failure to Mitigate for a 35 Year Employee is Almost Futile:

In Wall v M.H. Roe Sheet Metal ( no Canli 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 Defendants 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 Defendants’ 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.

If you would like a copy of this unreported decision, email me at barry@barryfisher.ca

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Repudiation Upheld Thus Valid Termination Clause of No Effect:

In Klyn v Pentax Canada Inc., 2024 BCSC 372. Justice Edelman had a situation where the Defendant failed to honour their own termination clause. The result was that the Defendant could not rely on their otherwise enforceable termination clause and thus the Plaintiff was entitled to common law reasonable notice. This is what the Judge said :

[6]       The parties agree on the applicable law. Repudiation is a breach of contract by one party giving rise to the right of the other party to terminate the contract and pursue the available remedies for the breach. A breach is a repudiation of the contract if it is a breach of a contractual condition or of some other sufficiently important term of the contract so that there is a substantial failure of performance (see Potter v. New Brunswick (Legal Aid Services Commission), 2015 SCC 10 at paras. 144-145).

[7]       Mr. Klyn alleges a number of breaches of the contract upon his termination. Although Pentax made some payments to him between April and July, the payments only included salary and not commissions as required by the contract. Pentax has not provided a satisfactory explanation for the failure to pay commissions during that period, simply making a rather vague statement that there was a disagreement about the amount owed. I fail to understand why Pentax wouldn’t have at least paid the amount it considered to be required under the contract, in compliance with its understanding of its own obligations. The failure to comply with its own understanding of its obligations appears to me to be a clear breach of the contract.

[8]       In any event, the payments ceased completely in July 2022, presumably because Mr. Klyn did not comply with the demand to report mitigation efforts to Pentax. In submissions, counsel for Pentax conceded that although a duty to mitigate was part of the employment contract, the reporting requirement imposed by Pentax was not. Pentax does not take issue with Mr. Klyn’s efforts to mitigate. He found alternate employment, in what is a rather specialized field, starting in February 2023. I find the failure to make the payments required under the termination clause to be a clear and unequivocal breach of a central term of the contract. I find the employment contract was repudiated by Pentax.

[9]       The damages owed to Mr. Klyn will therefore be calculated based on the common law.

if you like a copy of this case, email me at barry@barryfisher.ca

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Refusal to Set Aside a Noting in Default Can be Costly ;

In YELLOW PAGES DIGITAL & MEDIA SOLUTIONS v. MASSOUMI ( unreported ) Justice Chalmers had the following fact situation:

1. Claim ( asking for One Million Dollars ) issued and served on Defendant on Day 1.

2. Lawyer for Defendant emails Plaintiff’s counsel on Day 9 and says he is in the process of being retained and wants to talk on the phone .

3. Counsel talk on phone Day 20.

4. Defendant files Defence. on Day 60 and discovers that Plaintiff noted him in default 2 days after their phone call without warning him that he would note him in default.

The Judge not only set aside the default but awarded the Defendant $1,000 in costs, along with these comments:

“I find the conduct of the Plaintiff and ( their lawyer ) to be unacceptable. There is no reason for ( Plaintiff’s lawyer) to have noted the Defendant in default only two days after the deadline for delivering a defence had passed when he knew ( Defendant’s lawyer ) was involved in the action. The fact that ( Plaintiff’s lawyer) proceeded with the noting in default without giving( Defendant’s lawyer) the courtesy of a call is inexplicable. This is not a situation of extended delay.( Plaintiff’s counsel ) had spoken with ( Defence counsel) only two days before. “

When Plaintiff’s counsel tried to justify his actions on the basis that he did not have instructions from his client to do so, this is what the Judge said :

“This is not a reasonable or acceptable excuse. As noted by Myers J. in Strathmillan: 

[19] [….] The decision to grant or withhold an accommodation to a colleague opposite is a decision for counsel. Section 47 of the Advocates’ Society’s Principles of Civility and Professionalism for Advocates makes this clear: 

[47] Advocates, and not the client, have the sole discretion to determine the accommodations to be granted to opposing counsel and litigants in all matters not directly affecting the merits of the cause or prejudicing the client’s rights. Advocates should not accede to a client’s demands that the advocate act in a discourteous or uncooperative manner.” 

For a copy of this case, email me at barry@barryfisher.ca

Forfeiture Clause for Breach of Confidentiality and Non Disparagement Provision in an HRTO Settlement Upheld:

In L.C.C v M.M. ( 2023 HRTO 1138) Adjudicator Lavinia Inbar was dealing with an allegation that the former employee had  breached a settlement agreement by publishing on LinkedIn the following statement :

“To all those inquiring, I have come to a resolution in my Human Rights Complaint against [the applicant corporation] and [the individual applicant] for sex discrimination.”

The Minutes of Settlement contained the following provisions :

Confidentiality: The Applicant may disclose the terms of these Minutes of Settlement to [their] immediate family, legal and financial advisors, on the condition that they also agree to maintain strict confidentiality of these Minutes of Settlement. Upon inquiry by any person about the resolution of the Application or conclusion of the Applicant’s employment with [the applicant corporation], the Applicant shall simply state that all matters have been resolved. The Applicant will make no mention of, or allude in any way whatsoever to, the receipt of money or the amount of money received from [the applicant corporation] in this Settlement.

Mutual Non-Disparagement: The parties agree that the purpose of this Settlement is to resolve any issues the Applicant has with the Respondents on a confidential basis and without any disparagement of the parties. Accordingly, the parties agree to refrain from making any oral, written or electronic communications about each other that are untrue, defamatory, disparaging, or derogatory, or acting in any manner that would be likely to damage the opposite party’s reputation in the eyes of customers, regulators, the general public, or employees, unless required by law. This non-disparagement includes but is not limited to any electronic communications through social media (such as Facebook, Twitter, Instagram, Youtube, Snapchat, etc.)

Breach: The Applicant agrees that if [they breach] any of the obligations under this Settlement, and in particular the confidentiality obligation set out in paragraph 7 and the non-disparagement obligation in paragraph 8, above, [they] will be required to repay to the [corporate] Respondent the Settlement Payment paid to [them] under paragraph 2 of these Minutes of Settlement as liquidated damages, and will be responsible for any additional damages incurred by the [corporate] Respondent.

Understanding: The Applicant hereby declares that she has had an opportunity to obtain independent legal advice regarding the matters addressed in these Minutes of Settlement or has freely chosen not to do so, and that she fully understands her obligations under these Minutes of Settlement. She voluntarily accepts the terms and conditions set out in these Minutes of Settlement and agrees to finally settle all claims or potential claims, as described above, that she has or may have in future against the Respondents.

The HRT found that the confidentiality provision had been breached because they were only allowed to tell others about the resolution if someone inquired about it. Instead they published it to the whole world .

Secondly it was found that by referencing both the names of both the Corporate and individual Respondents and by referring to the issue as sex discrimination, this would , in the eye of the average reader of the post, likely damage the reputation of the Respondents.

The Adjudicator went on to find that the forfeiture clause was not a penalty clause because given the importance to the contracting parties that both sides respect the settlement and the difficulty of determining damages, that the forfeiture clause was a in fact a reasonable pre-estimate of damages and thus enforceable.

If you would like a copy of this case, email me at barry@barryfisher.ca

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Adding Words to the ESA Wilful Misconduct Clause Makes Whole Clause Void:

In De Castro v Arista Homes Ltd ( 2024 ONSC 1035 ) Justice Koehnen had to determine the enforceability  of the following termination clause

:If you are terminated for Cause or you have been guilty of wilful misconduct, disobedience, breach of Employment Agreement or wilful neglect of duty that is not trivial and has not been condoned by ARISTA, then ARISTA will be under no further obligation to provide you with pay in lieu of reasonable notice or severance pay whether under statute or common law. For the purposes of this Agreement “Cause” shall include your involvement in any act or omission which would in law permit ARISTA to, without notice or payment in lieu of notice, terminate your employment.  (Emphasis added)


The Judge found that this termination clause was not enforceable for the following reasons :

  1. Because it lists both cause or guilty of wilful misconduct etc, this must mean that it included both the ESA definition and the common law concept. This makes it illegal under Waksdale.
  2. Because it also lists ” breach of the Employment Agreement” as a ground for termination without notice, this could include many issues outside the scope of the ESA provision. For instance, if the Employment Agreement set the start time as  8 am and the employee wilfully came in at 8:10, that would never pass the ESA test

On another issue, the employer also tried the old canard that the Plaintiff failed to mitigate their damages . This is what the Judge said:

[28]      Courts have noted that if employers want to argue that a former employee has failed to mitigate her damages, the employer will be well advised to present evidence of help that it offered to the employee during his or her job search.

[12]  Here there is no evidence that the defendant offered the plaintiff any help in a job search.    It provided no job counselling.  It provided no leads for any jobs.  It did not provide the plaintiff with a reference letter


My Comments :

To misquote an old Motown song ” Don’t Mess With the ESA ”

If you want to be ESA compliant  just copy the words of the Act, don’t get creative.

If you are going to critisize  someone for a poor job search then either help them or shut up.

If you would like a copy of this case, email me at barry@barryfisher.ca

If you would like to book an arbitration or mediation go to my calendar at www.barryfisher.ca

If you like access to the Wrongful Dismissal Database, go to www.wddonline.ca