The employee found a new job about 14 weeks after Stingray Group fired him. In wrongful dismissal terms, that is a model outcome. A dismissed employee is supposed to go out, look for comparable work and take it, and he did. He then spent years fighting over whether anyone else should be allowed to see how he did it.
The law on mitigation in Canada is not hard on workers. Since the Supreme Court of Canada’s 1975 Red Deer College decision, the employer has had to show not only that the employee failed to make reasonable efforts to find work but also that such work could have been found. Employment lawyers on both sides describe the bar as high, and proving a failure to mitigate is not easy.
There is a catch, and Justice Catrina Braid of the Ontario Superior Court put a spotlight on it in a new ruling. The information needed to show a failure to mitigate is, for the most part, in the hands of the employee. The worker also has to prove the loss in the first place, and income earned during the notice period comes off the bill. The legal burden belongs to the employer. The filing cabinet belongs to the employee. A plaintiff who locks the cabinet does not strengthen his case. He just makes it look as if the drawer holds something worth hiding.
In this case, his drawer held a job offer. Cineplex Digital Media emailed it on June 1, 2020, and he started on June 15. In his documentary production he gave Stingray a heavily redacted copy of that email. The names of the attachments were partly or fully blacked out, and the attachments themselves never appeared. Nothing else from three months of correspondence with Cineplex was produced.
The redacting was his own work, done before the email reached his lawyer. Justice Braid addressed this in a footnote that every litigation client should be handed on intake. Redaction before production should be rare, she wrote. When it happens, counsel must get the clean version and decide what comes out. The client does not run that process.
Over the life of the dispute, the plaintiff offered eight reasons for withholding the documents. He had redacted them out of “a professional courtesy.” They were irrelevant because the case concerned his dismissal, not his new job. They were privileged, though he never said which privilege. A confidentiality clause barred disclosure. Cineplex’s lawyer had told him not to produce them. Disclosure would harm Cineplex by helping a direct competitor. Stingray’s demand put at risk “the integrity of competitive business practices.” And finally, the documents were not his to produce at all.
Eight reasons is a generous number. The court found none of them persuasive, and when Justice Braid fixed costs she pointed to the shifting justifications themselves as the reason the matter needed two separate motions.
The confidentiality clause had to be pried loose first. Plaintiff’s counsel consented to producing it on the day of the first hearing, which the judge said should have been conceded before anyone came to court. Once produced, the clause turned out to protect very little. It treated his salary, bonus and benefits as private, and it allowed him to share those details with his immediate family and his financial advisors. It said nothing about trade secrets, client lists or anything else commercially sensitive. It also could not have bound him, since he was not yet a Cineplex employee when the correspondence arrived. The clause let him discuss his pay with a financial planner while he tried to keep it from the court whose job was to weigh that pay against his damages.
The competitor argument fared no better. The plaintiff told Cineplex’s lawyers about the motion. Cineplex did not seek standing and filed no evidence of what was confidential or how disclosure would hurt it. The court instead received the plaintiff’s own affidavit, which said that unnamed counsel at Cineplex had advised him that some documents were confidential. It named no one and described no harm, and Braid gave it no weight. She also noted the deemed undertaking rule, which already bars Stingray from using produced documents outside the lawsuit. Nobody offered any evidence that the rule was inadequate.
The plaintiff relied on a 2013 case involving Toyota Canada in which the court declined to order production. The contrast with this case was instructive. In the Toyota case, the non-parties showed up, sought standing and filed evidence of real commercial sensitivity and real harm. Cineplex did none of those things. A third party’s interest has to be asserted by the third party.
The bill came to $25,000, payable by Nov. 30. That amount covers the refusals motion, the earlier fight over the clause and a case conference, across four court dates. Stingray had asked for $37,582.45. None of this money relates to whether he was wrongfully dismissed, how much notice he was owed or whether he mitigated properly. The ruling decides only that he must show documents he was always going to have to show.
Stingray did not need to prove anything to win this round. It only needed to ask for the paper. The law had already put the burden on the employer. The employee took on the costs himself.
