In Brown v General Electric Canada ( 2025 MBCA 37 ) the Court had a situation where, as a result of a merger , the employee was offered a comparable job with the new company. The Plaintiff refused the offer. The Plaintiff was then terminated. The new company did not renew the offer which was previously rejected.
The Court found that this refusal constituted a failure to mitigate .
This is what they said :
(c) The judge discounted the significance of the timing of the Wabtec offer occurring before the termination because he drew an inference on the evidence that Wabtec would have re‑extended its offer to the plaintiff after the termination if there was any suggestion the plaintiff changed his mind, as Wabtec wanted the plaintiff to continue in his employment and took no steps to fill the position (see Brown at paras 55-56).
[36] While the timing of a new offer of employment may be significant in the Evans analysis as to whether an employer can prove a failure by an employee to reasonably mitigate their loss, the factual context of whether reasonable steps have been taken to attempt to mitigate a loss is important (see 2438667 Manitoba Ltd v Husky Oil Limited, 2007 MBCA 77 at 17). Here there is an evidentiary basis to the judge’s finding that the precise timing of the offer of continued employment to the employee was not material to the question of mitigation, unlike the situation in cases such as Farwell v Citair, Inc (General Coach Canada), 2014 ONCA 177 at paras 20‑21 (see also Hickey v Christie & Walther Communications Limited, 2020 ONSC 7214 at para 81).
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