One might stand back briefly from 5,000 miles up and consider this issue. The employer who has terminated the plaintiff, presumably with lack of notice, considering the fact of litigation and then demands from the plaintiff the obligation to move some distance to new employment, typically at his expense, to minimize the company’s liability. This seems, to use a legal term, a stretch and then some. This also presumes no unfair conduct at the time of termination.
The 1989 B.C. Court of Appeal decision set out an important concept in the analysis of the mitigation obligation. The fundamental question was raised as to whom the duty is owed. Is this an obligation owed to the employer or must considerations of the plaintiff’s career and life goals rule the day?
Taylor, J.A, speaking for the unanimous court, dealt squarely with this issue: 1
That "duty" - to take reasonable steps to obtain equivalent employment elsewhere and to accept such employment if available - is not an obligation owed by the dismissed employee to the former employer to act in the employer's interests...
...The duty to "act reasonably" in seeking and accepting alternate employment, cannot be a duty to take such steps as will reduce the claim against the defaulting former employer, but must be a duty to take such steps as a reasonable person in the dismissed employee's position would take in his own interests - to maintain his income and his position in his industry, trade or profession. The question whether or not the employee has acted reasonably must be judged in relation to his own position, and not in relation to that of the employer who has wrongfully dismissed him.
This position was referenced and accepted in the Ontario decision of Schalkwyk v. Hyundai Auto Canada
Forshaw is generally considered a watershed case generally and even more so, with respect to the obligation reviewed presently. The B.C. Supreme Court considered a fact situation in which the plaintiff resided on Saltspring Island where she was terminal manager for the ferry service. On termination, she remained so situate and confined her job search to this location, a submission which was accepted by the trial judge. More significantly perhaps, the court noted the need juridically to review pre-Forshaw law in a different light: 2
I have also considered the following cases, all of which were decided before Forshaw, in which the duty to mitigate was held to have required the plaintiff to consider relocation: Kozak v. Hallmark Engineering Ltd. (1983), 1 C.C.E.L. 113 (B.C.S.C.); Harris v. Eastern Provincial Airways (1963) Ltd. (1981), 35 Nfld. & P.E.I.R. 152 (Nfld. T.D.); and Farrugia v. Wabco-Standard Inc. (c.o.b. American Standard), [1984] O.J. No. 409 (H.C.J.).
This view was repeated, without reference to the above decision in Peet v Babcock & Wilson, an Ontario Court of Appeal released in April of 2001.
As noted elsewhere, the appellate court decision, written by Finlayson. J.A., stated that the employee has a right to focus on his long term career aspirations and need not focus simply on the immediate short term results to pacify the plea of the employer on the need to show immediate mitigated results.
The respondent’s establishment of a new consulting business was clearly a means of mitigation. The fact that the early years of the respondent’s self-employment did not live up to his monetary expectations does not mean that this was an unreasonable attempt at mitigation. An employee who has been terminated is entitled to consider his or her own long-term interests when seeking another way of earning a living. The respondent’s efforts at mitigation cannot be classified as unreasonable simply because his actions did not neglect all other interests while focussing exclusively on his short-term obligation to mitigate damages for the sake of his former employer.
This issue was considered again by the Ontario Court of Appeal in 2017. This Court repeated the same theme:
A terminated employee does not fail to mitigate merely because he chooses to take some career risks that might not minimize the compensation that his former employer will owe to him: Peet, at para. 8;
These cases should be considered landmark statements of law. They provide important guidelines for this issue, even though they did not deal specifically with the relocation issue.