Mitigation

STACEY REGINALD BALL

82 SCOLLARD STREET TORONTO, ON, M5R 1G2

STACEY REGINALD BALL

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Employees have a duty to take reasonable steps to mitigate his or her damages in the event of a wrongful dismissal

EMPLOYMENT LAW

Fixed-Term Employment Agreement

This duty exists even though they are the innocent party in the equation. Any benefit gained from complying with this duty to mitigate will be deducted from the damages that the employer must pay. The employee only has a duty to take reasonable steps to mitigate damages. The standard for mitigation is “reasonableness”, not “perfection”. The duty is owed to themselves, meaning that the former employee is entitled to seek a position that matches their level of skill and expertise. They do not have to take a lower paying job, even if that would please their former employer by reducing the amount of damages owing. The onus is on the employer who claims the former employee has breached the duty to mitigate.

The employer must prove that the employee found or could have found similar employment reasonably suited to his or her abilities. It is a question of fact whether the employee acted reasonably, and each case is different. See Red Deer College v. Michaels (1975), 57 D.L.R. (3d) 386 (S.C.C.) and Tsakiris v. Deloitte & touch LLP (2013), 8 C.C.E.L. (4th) 210 (Ont. S.C.J.) for more reading on this concept. For example, the courts have held that the number of resumes an individual sends out is not determinative of satisfying the duty to mitigate. It may be unfair or humiliating to require an individual to endure more rejection when the chances of finding a new job are low.

​Alternate Employment

Personal factors, such as job location and family attachments, may be relevant in determining whether it is reasonable to limit the geographic range of a search for alternate employment. An employee is not required to conduct a fruitless job search, such as where the individual knows there are no realistic prospects based on their age and industry, or if an employee is ill. Courts have also been understanding of the emotional shock that some individuals feel when they are terminated, and they may find a delay of two to three months reasonable before an individual starts looking for work, though there should be evidence of the emotional impact from the termination.

An employee in a fixed term contract may be terminated without cause before the contract term has expired. It is possible that a fixed-term employment agreement contains an enforceable termination clause, and that this termination clause would limit the employee’s reasonable notice. However, in the absence of an enforceable termination clause, the courts have ruled that the termination date is the end of the contract and therefore the employee should receive all salary owing under the fixed term contract. In such a case, the employee may not have a duty to mitigate their losses. Please note that the above information does not constitute legal advice. It is general information about the law. If you require legal advice with an employment issue, please contact the experts at Ball Professional Corporation.

FIXED TERM CONTRACT

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CLIENT REVIEWS

“ Stacey Ball is the ultimate in employment lawyers. He got me an excellent settlement and I referred him to fellow long term employees whom I know were very happy in their outcome. I cannot recommend him enough; his name alone will give you clout. This is the guy who wrote the book. He is the best. ”
- John Cunningham, Toronto, ON

“ I was strongly advised by another client to see Stacey Ball. At the initial consultation I found Stacey to be very candid, honest and confident. He was very knowledgeable and upfront about reasonable expectations. He acted quickly on my behalf, which resulted in a fair settlement. I would recommend Stacey to anyone who wishes to use a pro, who knows the law, and is the best employment lawyer in the business. ”
- Todd Kemp, Oshawa, ON

“ I would highly recommend Stacey Ball as an employment lawyer. He was honest, hard working on my behalf and obtained an excellent settlement. I found him to be the top and best employment lawyer I could have obtained. ”
- Lou T. Richmond Hill, ON

“ Stacey Ball is the best employment lawyer you can have on your side in Toronto. There is no employment lawyer representing employees with a stronger track record than him. In my experience, he gets the results that meet your needs, even against the most stubborn employers. Had I not gone with Stacey, I would have gotten nothing because that was what my employer insisted on until he intervened on my behalf. He is the best and top employment lawyer. ”
- James Yu, Toronto, ON

“ I first used Stacey over a decade ago to review personal and business employment contracts. Stacey is arguably the best employment law lawyer in both Canada and south of the border. His intimate knowledge of the law is second to none. He is readily available for any situation which requires a quick, frank and authentic response. I would highly recommend him for both individuals and organizations alike.​ ”
- Antoinette St. Angelo, V.P. & Director of Production Services, Toronto, ON

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