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CCCA_V3No1_Decisions-FIN.qxd:CCCA_V1No1_DriversSeat-FIN.qxd 1/21/09 3:05 PM Page 37 Feature that as part of a terminated employee’s duty to mitigate his loss to work part of it. after termination, he may be required to either continue to work Ray-Ellis cautions employers not to use this case as a“free-for- the notice period or accept another position with the employer, all that can be used as a litigation strategy to terminate somebody as long as there is no material change in the terms of employment. and then bring them back if they sue you.” In this case, the plaintiff had been employed as a business agent in the union’s office for 23 years but was dismissed after the elec- What next? tion of a new union executive. He indicated that he would accept Overall, employment law became far more employer-friendly in 24 months’ notice and showed a willingness to work for 12 2008, as the Supreme Court went a long way to clarify its stance months, then receive 12 months’ salary in lieu of notice. on key employment law issues, including punitive damages, mit- The employee continued to receive salary and benefits while igation and absenteeism. As the economy nosedives, it will be negotiating a package.Then, more than four months after receiv- interesting to see how lower courts, where most cases start and ing a termination letter, he was asked to return to work to serve end, will interpret these decisions. out the balance of the 24 months. He indicated that he would For all that 2008 delivered a cornucopia of employment law return to work if the union rescinded its termination letter. rulings from the country’s top court, corporate counsel are still The trial judge ruled he was wrongfully dismissed and entitled looking for a significant employment law issue to be examined to 22 months’ damages. The judge also decided that the union — the length of notice periods. hadn’t shown that the employee had failed to mitigate his dam- “Over a long period of time you can see the notice periods edg- ages, and awarded more than $100,000. ing up,” says Wilson.“I don’t see any movement to begin to scale The Supreme Court ruled that when an employer ends an that back.” He hopes the court will choose another case soon that employee’s employment without notice,it is required to pay dam- will help clarify the issue for Canadian employment lawyers. ages in lieu of notice. “But that requirement is subject to the employee making a reasonable effort to mitigate the damages by Ann Macaulay is a freelance writer inToronto. seeking an alternate source of income.” The court added that it’s sometimes necessary for a dismissed employee to mitigate his damages by going back to work for the same employer.As long as A CALL TO ACTION CANADA there are no barriers to re-employ- DIVERSITY IN THE LEGAL PROFESSION ment, taking temporary work with the AN INVITATION TO CORPORATE COUNSEL TO same employer “is consistent with the THE FIRST ANNUAL notion that damages are meant to com- A CALL TO ACTION CANADA pensate for lack of notice, and not to CONFERENCE - TORONTO 2009 penalize the employer for the dismissal This A Call to Action Canada conference is inspired by the U.S. Call to Action movement. Our mission is to have Canadian corporations, through their in-house counsel, commit to foster itself,” the court wrote. diversity in the legal profession, both within their organizations and, especially, in the outside law firms which supply legal services. Commenting on the decision,Wilson WHEN says“the onus resides with the employer Tuesday, April 28, 2009 - 8:30 a.m. to 6:00 p.m. to demonstrate that the employee has WHERE The University Club of Toronto, 380 University Avenue failed to make reasonable efforts to mit- Toronto, Ontario Canada M5H 2M9 T. 416-597-1336 igate his loss.”It’s the employer that must CONFERENCE CHAIRS satisfy the court that the employee has Joy Casey, General Counsel, Aurora Holdings Co. Ltd Nicky Huq, Huq & Kuegle not made a reasonable effort to mitigate Canadian in-house corporate counsel are invited to participate in this conference on April 28, his loss by finding other employment. 2009 and to sign on to the A Call to Action Canada mission statement, pledging their commitment The case “sets a test for mitigation, to actively promote diversity in the legal profession. To reserve your attendance or which is employer-friendly and says that for information on sponsorship opportunities contact: employees have to be reasonable,” says netwok > Direct Conferencing Inc., Ray-Ellis. However, she says, corporate Suite 801, 20 Adelaide Street East, Toronto, ON M5C 2T6 counsel should recognize that Evans had Attention: Peter Calluori, Tel: 416-795-9747 E-mail: info@acalltoactioncanada.com a very restricted set of facts. In this case, BE INFORMED . BE INSPIRED . BE CHALLENGED MAKE A DIFFERENCE . the plaintiff was being paid while negoti- ating a severance package and was willing PRINTEMPS 2009 CCCA Canadian Corporate Counsel Association 37