In Northern Air Charter (PR) Inc v Dunbar, 2023 ABKB 171, Justice Woolley sitting on an appeal, had to deal with an increasing common situation.
The plaintiff was laid off and was given no notice. The plaintiff hired a lawyer to send a demand letter claiming wrongful dismissal damages. The employer then turned around and offered the Plaintiff his job back but made no offer to pay him for the time off, which was 2.5 months.
This is what the judge said :
[63] The trial judge correctly summarized the Supreme Court’s decision in Evans. The rest of his decision on the issue of mitigation involved a question of mixed fact and law, and is subject to review for palpable and overriding error.
[64] The trial judge made no such error. An employee’s failure to accept an offer to return to employment, even in uncomfortable or unhappy circumstances, can constitute a failure to mitigate, as was the case in Evans. An employee is not, however, required to accept an offer of employment regardless of the circumstances: Fredrickson v Newtech Dental Laboratory Inc, 2015 BCCA 357; Oostlander v Cervus Equipment Corporation, 2022 ABQB 200.
[65] Here, Northern Air did not provide Mr. Dunbar with notice. He had been out of work for two and a half months, half the notice period to which he was entitled, as found by the trial judge. Northern Air did not offer to make Mr. Dunbar whole. As such, had Mr. Dunbar returned to work at Northern Air he would have been in the awkward position of either giving up his legal claim for notice, or being engaged in legal proceedings with his employer. The trial judge did not make a palpable or overriding error in finding that a reasonable person would not accept an offer of employment in those circumstances.
My Comments:
This case reminds us that in order for an Evans v Teamsters type tactic to succeed the employer should offer full backpay to the employee or the refusing Plaintiff will probably have the right to refuse the offer.
Another common mistake of employers is to make the recall an offer intended to end the proposed litigation. If this is done then the Plaintiff can argue that as this was a settlement offer, it is inadmissible in Court as it is contrary to the settlement privilege rule.
Thus the recall letter should be “with prejudice” and the employee should be advised that they are not required to discontinue the lawsuit in order to return to work. They should further be advised that of they refuse the recall, the employer will claim that the plaintiff has failed to mitigate his damages from that date forward.
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