Mitigation: Relocation: Anecdotal Prior to Forshaw

The 1976 Alberta decision of Hunt v Cimco arose in the context of a constructive dismissal. This involved an offer made by the employer that the plaintiff move from Calgary to Winnipeg. It had been agreed that a salary increment would accompany this move, but the precise amount had not been determined. The plaintiff was required to sell his Calgary residence for the move. He declined the offer. A constructive dismissal was found.

In Ferguson v Spalding Co-op, a 1980 decision from the Saskatchewan Queen’s Bench, the plaintiff was advised that the Federation of Co-operatives would recommend him for a similar position in Kenaston and his moving expenses would be paid by the defendant. He then lived in Spalding. His wife was employed in the same town and her family also lived close by. The plaintiff was a hobby bee farmer, which was also a part-time business. Spalding was conducive to bee farming whereas Kenaston was not. It was found that there was no obligation to move.

The 1980 case of Curry v Lakeland Library Region considered the context of the plaintiff librarian employed in North Battleford, 55 years of age and employed with the defendant for over 30 years. Estey, J., as he then was, saw no obligation to “scour the library systems of Saskatchewan” to seek other employment.  This issue presented was not an offer of employment but rather the scope of the job search.

In 1982, the Newfoundland court found that the plaintiff had conducted an overly restrictive job search and he ought to have expanded his geographic scope across Canada. The plaintiff was employed as station manager for a regional airline carrier in St. John’s for seven years. He was a “young man, used to travel and he has been employed at stations outside this province.” The court also noted that the plaintiff was suited to “employment in many different types of business” and stood “a fair chance of obtaining suitable employment if he had been willing to move elsewhere”. ¹

One might expect that the existence of a contractual term which defined the obligation to relocate, or more acutely, the need not to do so, would rule the day. This was not the case in Kozak v Hallmark Engineering, a 1983 decision of the B.C. Supreme Court. ²

The plaintiff was employed by Hallmark when it was purchased by a share acquisition by Monenco, a national engineering company. His employer, hence, remained as Hallmark. The plaintiff refused the offer made to relocate to Calgary, a move which Monenco agreed to pay. ³ The court concluded that the decision to reject the move was one of personal choice and not a condition of good health. The plaintiff had raised the issue of his wife’s health.

As to the contract term, the court stated as follows: ⁴

The evidence is that it is customary for engineers to be prepared to relocate. It was exceptional, in Mr. Kozak’s case, that he was exempted by the defendant from any obligation to do so. He could not, however, claim the benefit of the implied term clothing him with exempt status once his employment with the defendant was at an end. He was, I think, obliged to accept Monenco’s offer. He had – and he knew he had – no reasonable prospect of employment in Vancouver, or even in Calgary for that matter, if he did not accept Monenco’s offer. I think that it was reasonable to expect Mr. Kozak to accept Monenco’s offer. No other opportunity of employment was in the offing or likely to be in the offing.

The reference above is to an “implied term”, which is distinct from the earlier reference to “the plaintiff’s contractual relationship with Hallmark had exempted the plaintiff from any obligation to relocate from Vancouver.” ⁵

In 1984, the Ontario Supreme Court considered this issue in the context of an equivalent job offer made with the same employer, in a different plant which was a one hour drive from the plaintiff’s residence. This was found to be a reasonable offer, particularly as no family relocation was required, and hence a duty to accept it was found. ⁶

The Supreme Court of B.C. had before it an unusual set of facts in its 1988 decision. ⁷ The plaintiff had been employed as a unionized bus driver for 22 years in Calgary when he was offered a management position as regional safety co-ordinator in Vancouver. The company sought a commitment from him, in exchange for this new position that he would continue to work beyond age 55, this being the minimum retirement age for drivers and the plaintiff then being 10 days within this window. The plaintiff agreed to work until at least age 60. The company paid his moving costs to Vancouver. The plaintiff also agreed to relinquish his interest in two family companies in Alberta, for which his spouse worked full time.

On termination, the plaintiff was able to return to his driver position in Calgary. The company did not offer any reimbursement of his costs to move back to Calgary. There were also medical issues confronting his spouse and his son. He refused the move. He elected to remain in Vancouver and seek comparable employment. His claim succeeded. There was no obligation to return to Calgary on these facts.

The Ontario Court, General Division, in 1994 determined that the plaintiff, married, whose spouse was employed also in Timmins, had little opportunity for a similar newspaper job in Timmins. No obligation was seen to seek employment beyond Timmins. ⁸

The court in Schalkwyk v. Hyundai Auto Canada quoted with approval from Harris on Wrongful Dismissal on this point:

David Harris in his text Wrongful Dismissal, 1990 ed. (Toronto: Carswell, 1989) at 4-253 indicates:

It would thus appear that the obligation of the employee to relocate to seek employment is tempered by the individual fact situation confronted by him. Aside from the considerations set out in the above decisions, one would imagine further attention would be paid to similar subjective circumstances–such as children’s schooling, the necessity of selling one’s residence and refinancing the purchase of an alternative residence at dramatically high interest rates, or the obligation to care for an elderly dependent relative. The issue appears, at the very least, to require an objective analysis of the “reasonableness of reasonable mitigation”.

The above cases reveal such an analysis. They twist and turn on the individual facts in each instance. There is an absence of a principled philosophy on the subject matter. This changed in 1989 with the B.C. Court of Appeal decision in Forshaw, which follows.

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1. Harris v Eastern Provincial Airways, not reported
2. not reported, although it is referenced in several reported decisions
3. The reference to Monenco, as opposed to Hallmark, paying for the costs comes from the reference to this case in Schalwyk
4. This passage comes from Schalkwyk
5. also at par 56
6. Farrugia v Wabco-Standard (1984) 4 CCEL 329, not on Canlii
7. Tennant v Greyhound
8. Jezic v Thomson Newspaper, not reported on Canlii (1994) 5 CCEL (2d) 113