The HR Space: More Mysteries Of Mitigation

Last week we reported on the Ontario Court of Appeal's decision in Bowes v. Goss Power Products Ltd., which found that an employee does not have a duty to mitigate where an employment contract contains a fixed severance entitlement but no express requirement to mitigate. The Court of Appeal relied on a number of factors in coming to this conclusion which should provide a clear warning to employers across the country. This article sets out those factors and suggests ways in which employers can make their employment agreements or offer letters more bullet-proof.

Factors Relied on by the Court of Appeal

In concluding that termination payments in an employment agreement are not subject to the duty to mitigate unless the agreement specifically says so, the Court relied on the following factors: