Refusing to Accept Offer From Purchaser Not Failure to Mitigate :

In Dussault v Imperial Oil ( 2018 ONSC 1168) two long term plaintiffs were told that Imperial was selling   the division that they worked for to Mac’s and that Mac’s would make them a comporable  job offer. The Plaintiffs rejected the Mac’s offers.

The legal issue was whether this was a failure to mitigate, thereby reducing the Imperial severance obligations.

Justice Faveau said NO for the following reasons:

1) The Mac’s offers came before the actual termination from Imperial and were not restated after the actual termination.

2) Because Imperial demanded that before paying out severance the Plaintiffs had to sign a release, it was reasonable not to accept Mac’s offer as this would deny the Plaintiffs any ability to later sue Mac’s for any shortfall.

3) As Mac’s was not prepared to recognize their years of service with Imperial, it was reasonable for the Plaintiffs to reject the offer.

4) The Plaintiffs had to agree with Mac that they would not disclose their pay rate to other Mac employees as their pay rate was higher.  This would make the future work relationship ” potentially difficult’.

5) The higher salary was only guaranteed for 18 months, less than the 26 month notice period awarded by the Court.