The Ontario Court of Appeal confirms that a terminated employee does not have an obligation to seek a lesser paying job

While it has been well established that an employee has an obligation to mitigate damages by seeking comparable employment, a recent Ontario Court of Appeal decision confirms that an employee is not required to apply to lesser paying positions.

In Lake v. La Presse, 2022 ONCA 742, the Respondent, La Presse, is a French newspaper based in Montréal, Québec. The Appellant, Merida Lake, was hired by La Presse in 2013 and worked as a General Manager for over five years. Ms. Lake was 52 years old and was the most senior employee in the Toronto division with an annual salary of $185,000, along with a car allowance, annual bonus, pension, and other benefits.

On March 25, 2019, Ms. Lake was notified that her employment was terminated due to La Presse’s decision to close its Toronto office. Ms. Lake conducted a job search but remained unemployment at the date of the summary judgement motion, approximately 2 years after her dismissal.

On the issue of mitigation, La Presse argued that Ms. Lake did not reasonable mitigate her damages because (1) she waited too long before beginning her job search, (2) she “aimed too high” when applying to Vice-President positions and should have applied to less senior positions if she continued to remain unemployed and; (c) she applied to very few jobs. La Presse argued that Ms. Lake would have had better chances of obtaining new employment if she expanded her job search, searched for jobs sooner after dismissal, and applied for more positions.

The Court highlighted Ms. Lake’s attempts to seek employment, among which were:

  1. Her daily use of LinkedIn and other online job forums;
  2. Using keywords relevant to the job titles that were comparable and were not limited to vice-president positions such as “director of sales, head of sales, GM, VP”;
  3. Networking and attendances at meetings and conferences in her field;
  4. The use of career transition services provided by La Presse; and,
  5. Privately funded coaching.The Court further noted that Ms. Lake had applied for 20 suitable positions which matched her work experience and her qualifications.

During its analysis, the Court outlined the two-part test to determine if Ms. Lake had mitigated her damages: first, whether Ms. Lake took reasonable steps to find comparable employment, and second, if such steps had been taken then she would have likely obtained comparable employment.

The Court confirmed that Ms. Lake only had an obligation to seek “comparable employment”, which is defined in Carter v. 1657593 Ontario Inc., 2015 ONCA 823 as employment that is comparable in status, hours, and remuneration as the position held at the time of dismissal. With this in mind, the Court rejected La Presse’s argument that a dismissed employee must expand their search to seek lesser paying jobs or positions for which they are overqualified.