Under the common law, an employee who is terminated without
cause is entitled to reasonable notice of termination, or pay in
lieu thereof. That entitlement is not free of conditions. A
wrongfully dismissed employee is subject to a duty to mitigation
his/her losses. The duty to mitigate requires a dismissed employee
to take reasonable steps to obtain equivalent employment and to
accept such employment, if available, failing which the court may
reduce the employee's damages. An employer is generally
entitled to a deduction in damages for income earned by the
dismissed employee during the notice period. The question many
employers face is whether all income earned after
termination is considered mitigation income. This issue was
recently addressed by the Ontario Court of Appeal in the decision
of Brake v PJ-M2R Restaurant Inc. 2017 ONCA 402.
