In Degenedza v CIBC ( Federal Court Docket T-1399-19) Justice Strickland was judicially reviewing the decision of an adjudicator under the Unjust Dismissal provisions of the Canada Labour Code .
The Plaintiff had worked at the CIBC making $60,400 /year as Senior Investigator. He also worked on the side as an UBER driver making about $10/hour for about 10 hours a week.
After termination he increased his UBER hours to 60 a week and thus made $600/ week. The Adjudicator treated the extra $500 as mitigation income and reduced the damages accordingly.
The Court found that this was wrong and contrary to the Ontario Court of Appeal decision in Brake which held that mitigation earnings from a substantially inferior job should not be deducted from an employee’s damage award.
This is what the Court said :
” To illustrate this point, a terminated employee might seek but be unable to find work of similar responsibility and salary. However, not being able to afford not to work, they will instead take a lesser job and work more hours in an effort to keep the wolf from the door. Or possible take two or three lesser jobs to the same end. It is difficult to see how working more hours in lesser paying position(s) can serve as a straight dollar for dollar substitute for the amount that could have been earned less hours under the original employment.”
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