This matter relates to a case that we had been previously discussed in August 2012.  At that time, the Superior Court of Quebec had refused to award a termination indemnity to a 75-year-old employee due to his failure to mitigate his damages following the cessation of his employment by not making efforts to seek alternate employment.

The Court of Appeal has now reversed the Superior Court’s decision and declared that 75-year Abraham Levy, whose employment was terminated after over 35 years of service as a result of the shutdown of his employer’ plant, was entitled to receive a reasonable notice of termination.

The Court of Appeal confirmed that Mr. Levy should not be penalized for not taking active measures to find a new job when, considering his age, those measures would have been futile in any event. The Court of Appeal further reminds us that an employee’s failure to mitigate his damages can only constitute a fault if it is the cause of the employee not securing new employment. In the present case, the Court concludes that it is likely that any job search efforts by Mr. Levy would have been unsuccessful and as such, his failure to make such efforts did not change anything in his particular situation.

Based on this case, employers should be cautious to not hold older employees to an unreasonable standard to find alternate employment and should also recognize that age is a relevant factor in assessing the employee’s reasonable notice of termination.

In the circumstances, the Court of Appeal concluded that Mr. Levy was entitled to receive a termination indemnity of 10 months.