Canadian Employment Law Today

cating to her new place of employment. e employee was awarded $45,010.32 in relocation expenses for things like mov- ing expenses, land transfer taxes, legal fees, real estate fees and mortgage pen- alties. It is doubtful that the employer would have been liable for these expenses had the employee moved unrelated to her mitigation attempts, but because she did mitigate and because she lived in the area prior to her relocation by the company, the court found such expenses to be war- ranted and recoverable. Earnings from lower- paying employment An employer is generally entitled to a deduction for income earned by the ter- minated employee from other sources of income during the common law no- tice period. No deduction is appropriate during the statutory minimum period. However, under certain circumstances, courts have the discretion not to deduct employment income. Based upon the Ontario Court of Appeal's decision in Brake v. PJ-M2R Restaurant Inc., income that is supplementary — could have been earned by the employee if she remained employed with her former employer — will likely not count as mitigation in- come. In the concurring decision, Justice Feldman went even further and held that when an employee is forced to accept an inferior position because no comparable position is available, the amount earned is not mitigation income and not to be de- ducted from the reasonable notice award. In most wrongful dismissal claims, miti- gation will be a live issue and it's clear from the above noted cases it's not simply about whether the employee obtained a new job or not. Issues like mitigation expenses, what constitutes mitigation income, can an employee seek retraining, amongst a host of other issues, will also be in play to de - termine whether an employer has met the test set out in Michaels. What is clear is that an employee must do what is reasonable to minimize her losses — if she does not, her entitlement may be reduced. If the employee acts reasonably and is unable to secure com - parable employment, she will not be found to have failed to mitigate and, in fact, she may have an additional claim for mitigation expenses against her former employer. For more information see: • Michaels v. Red Deer College, 1975 Carswel- lAlta 57 (S.C.C.). • Fisher v. Hirtz, 2016 CarswellOnt 12103 (Ont. S.C.J.). • Yiu v. Canac Kitchens Ltd., 2009 Carswel - lOnt 1164 (Ont. S.C.J.). • Jonasson v. Nexen, 2018 CarswellAlta 1907 (Alta. Q.B.). • Benjamin v. Cascades Canada ULC, 2017 CarswellOnt 6278 (Ont. S.C.J.). • Cipman v. Kolumbia Inn Daycare Society, 2006 CarswellBC 3037 (B.C. S.C.). • Kinsey v. SPX Canada Inc., 1994 Car - swellBC 1144 (B.C. S.C.). • Williamson v. Ritz Lutheran Villa, 2010 CarswellOnt 1877 (Ont. S.C.J.). • Robinson v. H.J. Heinz Company of Canada LP, 2018 CarswellOnt 9278 (Ont. S.C.J.). • Brake v. PJ-M2R Restaurant Inc., 2017 Car - swellOnt 7619 (Ont. C.A.). ABOUT THE AUTHOR Alex Kowal Alex Kowal is a legal advisor with e2r® in Toronto. He can be reached at (416) 867- 9155 or akowal@e2rsolutions.com. Canadian HR Reporter, a Thomson Reuters business 2019 February 6, 2019 | Canadian Employment Law Today CREDIT: FIZKES/SHUTTERSTOCK Workers don't get a 'free pass' to upgrade skills by retraining

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