A recent wrongful dismissal opinion from the Ontario Superior Court of Justice weighed the impact of the pandemic and alleged failure to mitigate when deciding how much reasonable notice damages were owed the plaintiff. In Gracias v. Dr. David Walt Dentistry, 2022 ONSC 2967, the court did not accept the employer’s claim that the employee failed to mitigate damages by falsifying job applications after her employment termination. The court awarded a three-month notice period less the Employment Standards Act, 2000 (ESA) entitlements already paid, and concluded that her Canada Emergency Response Benefit (CERB) should not be deducted from the damages. This decision is useful to employers because, among other things, it demonstrates a court’s response to allegations that an employee falsified mitigation documents, applies the rule in Waksdale, and takes a market-specific approach to evaluating the impact of the COVID-19 pandemic on the reasonable notice period. The decision is also useful to employers because it demonstrates that Canadian courts continue to take an inconsistent approach to whether CERB payments should be deducted from reasonable notice damages.
Background
On March 15, 2020, at the outset of the COVID-19 pandemic, the employee was dismissed without cause from full-time employment as a dental hygienist and paid her ESA entitlement of one-week’s pay in lieu of notice. The employment contract (Contract) provided:
Your employment may be terminated without cause for...
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