Home › Index of Contents › Mitigation: Index to Contents › Mitigation Reasonable Job Search, Comparable Employment, Offsets & Return-to-Work Issues This chapter examines the employee’s obligation to mitigate damages following dismissal, including the employer’s evidentiary burden, comparable employment, relocation, fixed-term contracts, mitigation expenses, self-employment, benefit offsets, stock options and the Mifsud and Evans return-to-work principles. Quick ResearchFundamentals Income & Comparable Work Human Rights Relocation Fixed-Term Contracts Mitigation Expenses Self-Employment Offsets Stock Options Mifsud Evans Statutory Issues 01 The Fundamentals The basic principles governing mitigation, including the employer’s twofold onus, comparable employment, reasonableness of the employee’s efforts and the evidence required to establish a failure to mitigate. Mitigation: More Complex than Expected General Principles The Fundamentals Benefit Plans Trial Within Mitigation Period Assiduous Test Failure to Mitigate: Consequences Mixed Fact & Law 02 Income & Comparable Employment The treatment of higher-paying work, part-time income, inferior positions and other forms of post-dismissal employment. Inferior Position 03 Mitigation in Human Rights Cases The application of mitigation principles to human rights claims involving lost income and related remedies. Human Rights Cases 04 Relocation Whether an employee must consider employment requiring relocation depends upon the comparability of the position, the disruption involved and whose interests the mitigation obligation is intended to serve. Anecdotal Review Prior to Forshaw To Whom is the Duty Owed: A Principled Approach 05 Fixed-Term Contracts & Fixed Severance Whether mitigation applies where the parties have agreed to a fixed term, fixed severance payment or consulting arrangement. Fixed Term: Early Days Fixed Term: Modern 06 Mitigation Expenses Recovery of reasonable expenses incurred in attempting to mitigate, including moving costs, job-search expenses and jurisdictional differences. Mitigation Expenses Mitigation Expenses: British Columbia 07 Self-Employment & Starting a New Business An employee may choose self-employment as a reasonable mitigation strategy, but the analysis remains highly fact-specific and may include business expenses, business losses and the capital value of the new venture. Own Business Business Expenses & Business Loss Deduction of Capital Value of New Business 08 Offsets: Statutory, Pension & Disability Benefits Whether collateral payments received after dismissal reduce the wrongful dismissal award depends upon the source and legal character of the payment. Impact of Pension Payments Disability Payments 09 Stock Options Mitigation issues arising in claims for lost stock options, including whether the employee must purchase replacement securities in the market. Stock Options 10 Constructive Dismissal & Mifsud The circumstances in which a constructively dismissed employee may nevertheless be required to remain in a demoted or altered position in order to mitigate damages. Constructive Dismissal: Demotion: Mitigation: Mifsud Ontario Court of Appeal Anecdotal Review of Mifsud Interpretation Demotion: Acceptance & Waiver 11 Employer Offer to Return to Work: Evans The Supreme Court of Canada’s Evans principle addresses when a dismissed employee may be required to accept an offer to return to the former employer during the notice period. Employer Offer: Return to Work: Evans Evans: Facts Supreme Court of Canada Anecdotal Review of Mifsud & Evans Impact of Evans Timing is Important: Termination Followed by Offer of Return to Work 12 Statutory Payments & the Mitigation Defence Statutory termination and severance entitlements may raise different questions from common-law damages when an employer relies upon Mifsud or Evans. Statutory Payment Owing 📚 Explore Other Chapters in This Book 🔙 Back to Mitigation Main Page 🏠 Return to Canadian Employment Law
