The Ontario Court of Appeal held that an employee had not failed to mitigate his damages by rejecting work in a position reflecting a diminished role in the company and a significant change in status and prestige in Farwell v Citair, Inc. (General Coach Canada), 2014 ONCA 177. Although the relationship between the parties was not acrimonious, the salary and the working conditions would have been virtually identical to his former position apart from a likely bonus reduction, the employee was highly valued and the restructuring was motivated by economic conditions, the employee was not obliged to accept the position.
The employer had not offered the employee the lesser position as mitigating employment. That would have required that the employer to offer the position after the event that had brought about the constructive dismissal. As it was the employer’s offer of the position that caused the constructive dismissal, the duty to mitigate by accepting the position did not arise. The Court of Appeal upheld the award of 24 months’ salary in lieu of notice for a 38-year employee who was 58 years of age at the time of his dismissal.