In Hucsko v A.O.Smith Enterprises ( 2020 ONSC 1346) Taylor J had a situation where a 60 year old Senior Product Designer was awarded 20 months notice.
When it came to mitigation efforts, the Judge said:
51. I have no difficulty in concluding that the plaintiff failed to make reasonable efforts to find alternate employment. He made no effort to find another job. He decided, without even testing the job market that he would be unable to secure alternate employment because of his age and the circumstances of his dismissal. Susan Hucsko testified that her husband did not look for another job because he had a passion for sailing since he was a child. He had always wanted to build a sailboat. She said he enrolled in the program at Westlawn so that he could build a sailboat for them to enjoy in retirement.
One would normally think that this would result in some reduction of the notice period .
But no. The Judge went on to say :
However, I also find that the defendant has not discharged its burden of proving that if reasonable job search efforts had been made, the plaintiff would have found another job at a similar level of remuneration as he was receiving at the time of the termination of employment.
52 The defendant provided no assistance to the plaintiff to find alternate employment. Outplacement counselling was not offered. No reference letter was offered. As I have already indicated, there was no evidence that alternate employment was available in the plaintiff’s field within a reasonable distance of the plaintiff’s residence.
53 I decline to reduce the period of notice for a failure to mitigate.
It should be noted that the Employer fired this guy in part because of four serious incidents of verbal sexual harassment. However they are criticized for not giving him a reference letter.
Clearly the Employer should have led some evidence that there were job opportunities that might have been available for him if the Plaintiff even bothered to pretend to look for a job.