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Court reduces damages by 50% for failure to make bona fide mitigation efforts
September 1, 2016

The plaintiffs, Robert Logan and Kimberly Bocking, worked for Hamburger Mary’s restaurant for approximately 18 years. In March 2015, the plaintiffs were laid off while the restaurant was shut down for renovations. Mr. Logan and Ms. Bocking were given Records of Employment indicating an expected recall date of June 16, 2015. By June 2015 it was apparent the renovations would not be completed as planned and by the end of summer it was obvious the restaurant would not reopen any time soon. The employer did not recall the plaintiffs or provide them severance. In October 2016, they sued for wrongful dismissal.

Given the nature of their employment, their ages, and length of service, the Court found the plaintiffs were entitled to 14 months’ wages in lieu of notice. However, the employer argued the award should be reduced because the plaintiffs took no steps to find alternate employment until the spring of 2016. In response, the plaintiffs argued that the onus rested squarely on the employer to prove that had the plaintiffs been diligent in looking for work, they would have found suitable alternate employment. Otherwise, argued the plaintiffs, there was no basis to reduce the award. The Court disagreed and reduced their damages to approximately seven months’ wages (representing the period between the date of layoff and when they started the action).

This case is noteworthy for three reasons. First, the case suggests that where a discharged employee does nothing to seek alternate employment, the employer does not have to prove that reasonable efforts would have yielded alternate employment in order for the Court to reduce the award. Second, the Court confirmed that newspaper ads have some evidentiary value in relation to employment opportunities available to discharged employees when considering the defence of failure to mitigate. Third, the case serves as a useful reminder to employers that, absent an express provision in the employment contract, an employer does not have a right to temporarily lay off an employee.

Logan v. Numbers Cabaret Ltd. doing business as Hamburger Mary’s, 2016 BCSC 1473

Questions about the content of this article may be directed to Richard Truman.