Time to Expand the Search? The Duty to Mitigate in a Remote Work World

Paul Willetts, Vey Willetts LLP

Individuals in Ontario have a duty to mitigate their loss of employment when seeking damages for wrongful (or constructive) dismissal. In practical terms this means that while employees may be able to seek damages from their former employer (to put them in the position they would have been had they received adequate notice of termination), they must make reasonable efforts to replace their lost income by looking for, and accepting, other comparable work.  

Where an individual fails to take reasonable steps to mitigate loss of employment, it is likely to result in a reduction to the damages they may be awarded. As a result, there is an economic incentive for employers to scrutinize mitigation efforts and to challenge their “reasonableness”.

To show reasonable mitigation efforts, a dismissed employee should make (and record) ongoing and regular efforts to look for (and accept) new work within their skill set and at a similar rate of responsibility and compensation. Sometimes, parties will also dispute the area within which an individual is required to look for new work. The courts may be asked to consider whether a decision to turn down a comparable job offer was reasonable having regard for proximity to individual’s home and the commute involved.

In one recent case, for example, the Ontario Superior Court of Justice found it was unreasonable to expect an individual to commute to a job 90 minutes away.[1] Simply put, individuals are not required to relocate to find work, nor spend hours travelling to a distant workplace each day.

As a result of the pandemic, however, the nature of how and where we work has changed. We are no longer necessarily tied to employment options within a set geographic area. Remote work has become a popular and commonplace arrangement in some industries. It is entirely feasible, for example, that an individual living in Ottawa may work from home for a business in a different province or country.

As employment lawyers we need to account for this reality when advising clients and in advancing, or responding to, wrongful (or constructive) dismissal claims. The central concern when assessing mitigation efforts is whether, in the circumstances, a reasonable person would accept the opportunity in question.[2] This will always require a fact-driven assessment, with consideration for surrounding context. That said, where a person lives, and the jobs available in the immediate vicinity, may now tell only part of the story. With the traditional geographic shackles gone, job opportunities may be far greater.

In approaching this issue (whether on behalf of an employee or employer), legal counsel should canvass the availability of remote work options and turn their mind to why such options are reasonable (or not) for an individual to accept. In strategically advising clients, counsel may want to consider, among other things, whether:

1.       the individual has worked previously in a remote role;

2.       the suitability of the individual’s skills to a remote work model;

3.       the individual has a medical condition that may prevent remote work (or cannot be reasonably accommodated short of undue hardship); and

4.       the individual has a living arrangement that reasonably allows for remote work.

Remote work presents new challenges and opportunities for our clients and for us as legal counsel. That said, while the traditional workplace may be evolving, the existing legal framework remains fit for purpose. Mitigation assessments continue to be a fact-driven exercise and the core question, regardless of work location, is always whether a job prospect is objectively reasonable to consider and accept in the circumstances.  

[1] Quesnelle v. Camus Hydronics Ltd., 2022 ONSC 6156. Note: this case dealt with a complex set of facts, including whether the plaintiff was required to accept re-employment with their former employer to fulfil their duty to mitigate. The employer was also successful in having the damages award reduced by 30% for a failure to mitigate on other grounds.

[2] Evans v. Teamsters Local Union No. 31, 2008 SCC 20 (CanLII) at para 30.