Occasionally a fact situation may arise in which the plaintiff not only has succeeded in finding alternate employment but has been overly productive in the process. The question then arises, does the claim cease at the date of new employment or does the incremental income earned for the balance of the period reduce the claim asserted for the period of unemployment ?

The caselaw is conflicted.

A 1983 British Columbia Court of Appeal decision in Ellis v Whitepass determined that the notice period is to be set at the time of dismissal with a view to all factors in play at that time and once established, the court must examine the consequential loss for the entirety of this period.

While not precisely on this issue, the court in Meyer v Jim Pattison, an October 1991 decision of the British Columbia Supreme Court concluded that whether the income earned was greater or less than the terminal income, the latter being in the case at bar, the notice period in its entirety is to be used to detail the damage claim for lost income. In coming to this decision, the court referenced a 1985 Ontario decision which used the complete notice period in a case in which the mitigated income was higher than that received on termination. ¹

The New Brunswick Queen’s Bench in LeBlanc v Eurodata, a trial decision released in November of 1997 set the notice period as 6 months, within which period the plaintiff obtained a higher paying position for the last 3 months. There appeared to be no argument on the issue apparent from the decision. All alternate income offset the claim. It is to be noted that the marginal impact was modest as the trial judge allowed many mitigation expenses which left the “net income” as of no material consequence.

The Court of Appeal reversed on this issue, concluding that the employer should not gain the benefit of the higher income, a decision which was followed in Shaw Communications v Lum a decision also of the New Brunswick Court of Appeal released in April of 2004.

In 2020, the Ontario Divisional Court agreed with this position expressed above. The damage claim ended when the new higher paying position commenced, it concluded. To the same effect is Nassar v Oracle decided in September of 2022.

As noted elsewhere, the statutory payments are not reduced by successful mitigation, as determined the Divisional Court in Boland v APV Canada in December of 2004. This issue may be more significant in Ontario where the statutory sums may, given 26 years of service, be as much as 34 weeks.