Mitigation Issues

Evans Trial Decision & Court of Appeal

Evans – Trial Decision

At trial, Gower J. found that the letter of January 2, 2003 terminated Evans’ employment, that a fair notice period was 22 months and speaking as to mitigation generally, although his efforts were minimal, the double onus was not satisfied as “there was little or no evidence that it would have made a difference if he had done more”.

As to the offer made by the union specifically, the trial judge held that the request of Evans to rescind the termination letter was reasonable. Gower, J. also found that “while some of Mr. Evans’ fears about his relationship with the union may have been overstated in this case, they were not without foundation and were therefore not unreasonable”. No breach was found by the trial judge. This request by Evans would also have increased the severance period to 29 months.

Evans – Court of Appeal

The Yukon Court of Appeal disagreed 3-0. An important aspect of this decision was the finding made by the trial judge that Evans was not qualified for other jobs in Whitehorse nor had he attempted to find other employment.

The Court of Appeal found that his request to rescind the termination letter was unreasonable. The Court of Appeal also noted that the fact that Evans was prepared to resume his old job was never in doubt, nor had Evans contended otherwise. It is to be recalled that Evans’ first settlement offer contemplated his return to active employment for the first 12 months. The Court of Appeal agreed with the union submission that Evans had failed to mitigate by accepting the offer of continued employment.

The trial judge had distinguished constructive dismissal cases and the issue of mitigation in that context as an inappropriate analogy. The Court of Appeal disagreed as it stated that the principles were the same. This was one ground of appeal to the Supreme Court raised by Evans, albeit unsuccessfully, as noted.