Month: February 2023

Zero Mitigation Efforts Reduces Notice Period by 20%

In Zoehner v. Algo Communication Products Ltd.,2023 BCSC 224
Justice Verhoevan had this to say about a 63 year old employee ( and part owner of a family business ) regarding his mitigation efforts :1) He found that the employee had done nothing to find a comparable job as he was in full retirement mode.

2) However as the law also requires the defendant to show that if he had looked for a job he likely would have found one within the notice period, the Court found that the likelihood of this happening was basically zero for the following reasons :

[113] However, there was little likelihood that the plaintiff could have actually found reasonable alternative employment. As he noted, he was on the brink of retirement, and his professional skills were of limited scope, in that he had worked for a single employer for his entire career.

[114] An employee who has devoted a large part of his working life to one employer and whose knowledge and experience is tailored to the needs of that employer may be less marketable as an employee and may have more difficulty in obtaining alternative employment: Carey v. F. Drexel Co., [1974] 4 W.W.R. 492, 1974 CanLII 733 (B.C.S.C.).

[115] The plaintiff had health issues which limited his employability. He suffers from chronic low back pain with sciatica, caused by compressed discs in his lower back. He has limited tolerance for standing and walking. He is scheduled for vascular surgery. He takes medication, gabapentin, for his medical conditions. The medication causes fatigue and affects his mental alertness.

[116] It is quite unlikely that any employer would hire the plaintiff for a senior executive position paying anything like the salary he previously earned. Such jobs generally involve highly specialized services, with heavy demands and responsibilities. An older employee on the brink of retirement with significant health issues is not likely to obtain such employment.

Why then did the Judge reduce the notice period by 20%?

[117] However, given his retirement plans, it would have been reasonable for him to seek work at a lower salary, perhaps for a limited term. He might have been able to obtain some reasonable work, perhaps similar to the consulting work that he did, that might have brought in at least some income.

My Comments:

This is a BC case. In Ontario the law of mitigation is different on two points.

First, the employee is only obligated to look for comparable employment. They are never required to look for or accept lesser employment.

Second, even if they accept employment of a much lesser salary, that minimal income will not count as mitigation income that reduces the damage claim.

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

For my mediation date availability go to www.barryfisher.ca

Judgement = $35,743. Cost Award = $25,000

In Summers v. OZ Optics Limited, 2023 ONSC 723 Justice Hackland determined that the Plaintiff had beat their Rule 49 offer and was entitled to substantial indemnity cots for the bulk of the time .

Th judge made the following interesting comments about why he thought the Defendant’s actions increased the costs:

(b) Refusal to admit anything that should have been admitted – Rule 57.01(1)(g). The Respondent flatly refused and continues to refuse to acknowledge the application of the Court of Appeal judgement in Waksdale v. Swegon North America Inc. 2020 ONCA 391 (and subsequent appellate and trial decisions discussed in the court’s reasons herein), to the issue of the validity of the termination clause in its employment agreement. The Respondent continues to insist its’termination clause is valid and enforceable.

(c) Unnecessarily lengthening the duration of the proceedings – Rule 57.01(1)(e) and any step in the proceeding that was improper, vexatious or unnecessary – Rule 57.01(1)(f). The Respondent’s argument that the Applicant had failed to mitigate his damages by taking reasonable steps to secure new employment, an issue on which the Respondent had the burden of proof, was raised gratuitously and without any evidentiary basis. This was in the face of the Respondent doing nothing to assist the Applicant’s re-employment efforts-no letter of reference, no career transition counselling, and a summary dismissal in front of other employees. Then mitigation issue served to unnecessarily lengthen and complicate the proceedings and led to the Respondent improperly late serving affidavits on this issue, after the cross-examinations had
concluded.

My Comments;

1. Don’t make stupid legal arguments.

2. Don’t attack the Plaintiff’s mitigation efforts if the Defendant has done zilch to help him get a new job or taken active steps to impair it.

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

For my date availability, go to www.barryfisher.ca

Q: Want to Schedule a Motion for Summary Judgement in Toronto? A: You Will Get a Date 12 Months From Now :

I just heard from a very reliable source that he finally got a date for a summary judgement motion ( after a failed CPC attendance and 2 Case Conferences) and that date is in early 2024.

A system that was supposed to simplify and speed up straight forward cases has simply failed.

There are two simple solutions to this problem:

1. Take your mandatory mediation seriously. It is definitely your best opportunity to settle the case early and at less cost. I did a study a few years ago and found that of cases that did not settle at mediation, 95% of these cases eventually settled. So, when your mediation seems to be failing and you think, well we are going to a trial, remember that there is a 95% likelihood that it will not go to trial and will settle at some other time. In that case, why not try a little harder to get a deal at the mediation.

2. Use Mediation/ Arbitration ( MedArb) instead of litigation. Why keep using a failed litigation system? It is usually ( not always ) in the interests of both parties to get a resolution quickly and at the least cost. Med/Arb can be a useful alternative for the following reasons :

a) You get to choose your own judge.
b) You can contract out of the right to appeal.
c) You set the schedule, not some court clerk or judge.
d) The mediation will have a much higher likelihood of achieving a settlement.
e) Procedural matters and case management issues can be resolved promptly with a joint phone call or a ZOOM meeting.
f) Although you have to pay the Arbitrator’s fees, the actual hearing, if there is one, is usually much shorter than a trial. Moreover, the parties can agree that the winner pays the whole cost of the Arbitrator.

If you like to book either a mediation or an arbitration, go to my calendar at www.barryfisher.ca or call me at 416 999 3785.