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• Described damages ordered against an employer for acting in bad faith in the
manner in which it terminated an employment contract
Honda v. Keays :
• No more extension
• If there was bad faith in manner of dismissal & it caused actual physical &
psychological harm to EE – EE can be awarded aggravated damages
• If employer conduct was malicious and amounts to independent actionable
wrong, EE can be awarded punitive damages (high threshold)
How To Sue?
• Employeeǯs have ʹ years from the date of dismissal to sue
• As of Jan. 1, 2010: small claims court up to $25,000
• Over $25,000 - Ontario Superior Court of Justice
• A claim for $100,000 or less is filed under Ontario's simplified rules
• Just cause --> a trial is necessary
• Only define reasonable notice → motion for summary judgment may be
allowed
The Duty to Mitigate Compensatory Damages:
2 Types of Contractual Promises Dealing with Termination
• Promises to pay the employee a predetermined amount at a time of termination
• Promise to provide reasonable notice of termination
o Employee dismissed without reasonable notice has a duty to mitigate
A. The Standard of Mitigation Required:
• Burden on employer to show court that employee failed to mitigate loss by:
o Making a reasonable effort to look for a new job
o Accepting a job offer that a reasonable person in their position would accept
• Generally EEs allowed 3 months recovery time & mitigation is not expected
• Taking on self-employment not considered a mitigating act
B. Mitigation With a Job Offered By The Former Employer:
• Controversy around whether to accept a job from former employer
• "Highly artificial" to expect that an employer will work nicely and respectfully
with an employee in the process of suing them
• Duty to mitigate requires an employee to accept a reasonable job offer from
former employee ( Eans v. Treamsters )
o Salary should be same and working conditions similar
o Personal relationships are not acrimonious
o Return would not lead to environment of hostility, embarrassment or
humiliation
▪ See Chevalier v. Active Tire & Auto Centre
• Unfair if employer is allowed to avoid consequences of wrongful dismissal by
simply offering the dismissed employee another job
• Leaves employee with 2 bad choices:
o 1) Accept job they don't want, 2) forfeit wrongful dismissal damages
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Ch.ϭϳ: ResigŶatioŶ:
The Test for Assessing Whether an Employee Has Resigned:
• The employee's intention to resign has to be clear and unequivocal
• Objective test asks whether a reasonable person looking at what happened
would conclude that the employee had resigned
• Resignation must be voluntary:
o Resign or be dismissed; constructive dismissal=no choice!