In Mackenzie v 1785863 Ont Lt ( 2018 ONSC 3442) Pierce J determined that 65 year old General Manager with 5 years service making $65k was entitled to 9 months reasonable notice .
In that notice period the Plaintiff had first earned $2,000/ month and then $1500 / month in mitigation income in a very much reduced job.
Applying the OCA decision in Brake v PJ-M2R Restaurant , as the Plaintiff could not have been required to take these jobs as mitigation, the fact that he chose to do so means that the income does not count as mitigation income so as to reduce his notice damages. In the original Brake decision the mitigation income was a mere pittance, about $300. Here the mitigation income was 37% of his old income and it too was ignored.
What is the cutoff before mitigation income is counted ? Stay tuned for further cases to answer this vexing question.