Dismissed Employee Failed To Mitigate By Choosing Retraining Over Applying For Comparable Re-Employment

In Benjamin v. Cascades Canada ULC, the Ontario Superior Court of Justice reviewed the law surrounding an employee's duty to mitigate their common law reasonable notice damages arising from wrongful dismissal. In such cases, the onus is on the employer to establish a failure to mitigate, and that onus requires the employer to establish that the employee did not take reasonable steps to seek comparable work.

In this case the employee, Benjamin, had worked as an unskilled general labourer at Cascades for 28 years when he and 41 other employees were dismissed without cause when Cascades eliminated all production functions at its Scarborough plant. After Benjamin refused a 50-week severance package, Cascades paid him the termination and severance pay he was entitled to under the Employment Standards Act, 2000. Unsatisfied with this result, Benjamin sought 24 months common law reasonable notice.