Court slashes reasonable notice by three months

Ontario woman, dismissed without cause, failed to properly mitigate damages by looking for another job
|employmentlawtoday.com

A terminated employee of an Ontario company had her damages reduced by the Ontario Superior Court of Justice because she could not prove she was diligent in looking for another job. Simply put, she had not met her duty to mitigate damages.

Bonnie Kent, 59, was let go from her job at Stop ‘N’ Cash on Nov. 1, 2004, after six years with the company. The employer in this case didn’t allege cause, so the main issue before the court was what the reasonable notice period should be.

Reasonable notice

Kent argued that 12 months’ notice would be appropriate given her age, her management responsibilities and the fact she is female.

The employer urged the court to consider three months’ salary in lieu of notice in light of the fact she found work within three months of retaining an employment placement firm. It was critical of her efforts to find another job, and argued Kent had failed to provide the “best evidence” to the court to prove she had mitigated her damages.

“It is not unreasonable to assume that a woman of 59 years of age who is seeking a managerial/administrative position similar to what (Kent) had performed or a position of roughly equivalent status and remuneration is going to have a more difficult time to find alternative employment than a younger woman,” the court said.

Failure to mitigate damages

However, the court noted she did not provide her 2005 income tax return, she provided incomplete records from a private consulting business she had set up in the wake of her termination and she provided only part of the employment insurance records to prove she had continued efforts to find another job.

Had she properly mitigated her damages, the court said it would have awarded her nine months’ pay in lieu of notice.

“I am not satisfied that (Kent) moved to find alternative work with the diligence and resourcefulness that one might reasonably have expected from someone who was trying to find another job,” the court said. “The evidence provided to this court is largely unsubstantiated.”

Due to Kent’s failure to properly mitigate her damages, the court reduced the notice period for damages from nine months to six months. Kent’s salary, benefits and bonus for a six-month period was calculated at $25,782.81. Income earned from a private consulting business during the six-month period after her termination, which was subtracted from the total damages, was $4,230. Kent was therefore awarded damages totaling $21,552.81.

For more information see:

Kent v. Stop ‘N’ Cash 1000 Inc.

, 2006 CarswellOnt 4062 (Ont. S.C.J.).

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