Steinebach v. Clean Energy Compression Corp., 2016 BCCA 112 (CanLII)
The trial judge awarded 16 months notice to the respondent employee, who had been employed as a salesperson by the appellant, a supplier of natural gas fueling systems which generally are used for buses, heavy-duty trucks and fleets of corporate vehicles.
The respondent was terminated from his employment on 2 May 2014. For some time, he sough employment in the industry. At the end of July 2014, focused on becoming an investment advisor. Later, he found employment with CIBC Wood Gundy. The trial judge found that the respondent failed to mitigate.
…. I am of the view that the [respondent’s] criteria were too narrow, that it would have been reasonable for him to make greater efforts to find new employment, and that if he had done more he would likely have achieved greater success in finding employment in the industry that he had spent the major part of his working life.
In the result, the trial judge deducted 3 months.
The Court of Appeal found:
[25] Although the judge in the present case held that the respondent failed to mitigate his damages, he did not make a finding of the duration of that failure, other than inferentially at three months. It may be that deducting time from the notice period to take into account the respondent’s failure to mitigate led to this result, but the fact is that the judge did not state why he arrived at three months.
The Court of Appeal declined to chose between what it characterized as two approaches to the impact of failing to make adequate efforts to mitigate: “termination of the entitlement to damages ….; reduction in damages based on a notional period in which the employee failed to mitigate.”
While the parties asked the court to decide the issue of mitigation, the court did not have the evidence to do so. In the result the Court ordered a new trial.