Newspaper GM had no obligation to search for ‘lesser-paying job’ to fulfill duty to mitigate, Ontario Court of Appeal rules

A stack of newspapers. Photo: Brotin Biswas/Pexels

The Ontario Court of Appeal has overturned a lower court ruling that a newspaper executive failed to mitigate her damages.

The court said employees aren’t required to take a lesser job to fulfill that duty. A “comparable” job covers status, hours and remuneration similar to the position held at the time of dismissal, it said.

The lower court had deducted two months’ wages from an eight-month reasonable notice award, which the Court of Appeal reinstated.

General manager at La Presse

Merida Lake worked for La Presse, a daily online French language newspaper based in Montreal. She was hired in August 2013 in Toronto and worked for the company as its general manager for five-and-a-half years. She was the most senior employee in the Toronto office.

She led the sales team and managed as many as 13 staff. At the date of her dismissal, she had eight direct reports.

Her compensation consisted of an annual base salary of $185,000 with a car allowance, bonus, pension and other benefits. She was 52 when she was notified of her dismissal on March 25, 2019, when La Presse made a decision to close its Toronto office.

After being let go, she began an unsuccessful job search. She remained unemployed at the date of the summary judgment motion, two years after her dismissal.

There was no question Lake was terminated without cause and therefore entitled to reasonable notice. The lower court concluded eight months was an appropriate notice period, but reduced it by two months due to her failure to mitigate her damages by searching for alternate work.

The lower court said her job search was not adequate because:

  • Lake waited too long to begin her search.
  • She “aimed too high” in applying for vice-president roles and should have been applying for less senior roles.
  • She applied to very few jobs.

Job search took too long to start: Both courts agree

Lake appealed the reduction in her notice period for failure to mitigate.

The Ontario Court of Appeal agreed with the lower court that Lake waited too long to start her job search. The conclusion was she did very little to start looking for work before June 3, 2019. She stopped working for La Press on April 30, 2019.

No duty to search for ‘lesser paying job’

But the appeal court did find issue with the lower court’s ruling on the other mitigation issues.

“The motion judge erred in principle,” it said, by ruling that after a reasonable period of attempting to find similar employment a dismissed employee must begin searching for a “lesser paying job.”

The obligation on a worker is to seek “comparable” employment, it said. That covers status, hours and remuneration to the position held at the time of dismissal.

“There was no obligation for (Lake) to seek out less remunerative work, including by working as a sales representative,” it said.

Applying for VP-level positions

The lower court also made a mistake by ruling Lake was aiming too high when applying for vice-president roles. The appeal court said Lake’s evidence of her duty to mitigate was “substantial.”

“She detailed her efforts at searching for jobs on sites such as LinkedIn and other online job boards on an almost daily basis. She used search keywords relevant to the range of job titles she had identified as potentially comparable, and that were not limited to vice-president positions,” it said.

“She described her efforts at networking, including attending one-on-one meetings and conferences. She used the career transitioning services provided by the respondent, and then paid privately for additional coaching.”

This is how Lake herself described her job search:

“So suitable positions were positions that I would meet qualifications for. Just to let you know, my criteria, I guess, when looking for a job, is I wanted a senior role, so director of sales, head of sales, VP sales. I wanted it to be based in Toronto. I wanted it to be full-time and I think that’s probably it. I was not looking for a rep position. I wanted to manage people. That’s my expertise and skill. So when I say suitable, those are positions that would fit my criteria but also that I was qualified for as well too.”

The lower court erred by concluding she was searching for work that represented a promotion, it said.

“Without evidence contradicting (Lake’s) assertion that the vice-president roles had similar job responsibilities to her previous employment, the motion judge speculated, based on the title of the positions alone, that such positions were not comparable,” it said.

That was a mistake.

The onus is on the employer to prove failure to mitigate, the Court of Appeal said. La Presse simply did not offer any evidence to counter Lake’s assertions that the jobs with VP titles weren’t similar to her former role. Nor did it offer evidence to counter the assertion that opportunities in the industry were limited at the time, the appeal court said.

It added the two month deduction for failure to mitigate back to the original notice period.

For more information, see Lake v. La Presse, 2022 ONCA 742 (CanLII)

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