Feldman, J.A., delivered concurring reasons in the above decision. These reasons dealt only with the Home Depot income. In all other respects, she endorsed the majority decision. This decision determined that the trial judge had not deducted the Home Depot income earned as a cashier as it was “so substantially inferior”. The theme advanced is that if this position were one which the plaintiff would not ordinarily be obliged to accept to mitigate, then the income so earned should not offset the claim.

The words in these concurring reasons were as follows:

But if she can only find a position that is not comparable in either salary or responsibility, she is entitled to turn it down, and if she does, the amount she could have earned is not deducted from her damages.

[158] It follows, in my view, that where a wrongfully dismissed employee is effectively forced to accept a much inferior position because no comparable position is available, the amount she earns in that position is not mitigation of damages and need not be deducted from the amount the employer must pay.

It is always up to the trial judge to determine if the employee has met her duty to mitigate. When a wrongfully dismissed employee accepts new employment during the notice period, the question of whether or not to deduct those earnings depends on the trial judge's assessment of mitigation. If the trial judge finds that the new job is comparable to the old one, the earnings should be deducted as mitigation of damages. If the trial judge finds that the new job is vastly inferior to the old one, such that the employee would not be in breach of the duty to mitigate if she turned it down, the earnings should not be deducted.

[160] In other words, the trial judge decides whether a job that an employee takes, or turns down, amounts to mitigation of damages. As my colleague states, at para. 98, only moneys that are received in mitigation of the loss are deducted from the damages award.

The majority decision specifically addressed this issue and held to the contrary.

Notwithstanding the above, no deduction was made of such "inferior" income in two decisions in 2018 and again in 2019 decision in Ontario trial decisions: ¹

The evidence in this case clearly shows that most of the employment income earned by the Plaintiff herein post-separation from the Defendant, excepting that received from his employment with Quickmill and Contracore during the notice period, was earned in jobs that were clearly inferior to the position he held with the Defendant. This includes income from the Plaintiff’s new roofing company, to the extent there was any that on the evidence is by no means clear. Following and applying the decision of the Ontario Court of Appeal in Brake, I find that the income received by the Plaintiff from his employment at Quickmill and at Contracore in Mexico are amounts properly deductible from the notice award herein.

The Federal Court reviewed this issue in 2021 and rightly noted that the reasons of Feldman J.A., on this point were indeed not those of the majority: ²

Significantly, however, in both McLean and Mackenzie the Ontario Superior Court in reaching those decisions referred only to and relied on Justice Feldman’s concurring minority judgment in Brake, not the majority decision.