A recent decision from the Alberta Court of Appeal provides helpful guidance on the employee’s duty to mitigate in the context of a constructive dismissal and commentary on the consideration of whether an employee has, in fact, mitigated their damages. This article explores the Court’s reasoning and offers key takeaways for employers navigating similar issues in wrongful dismissal claims.
In Gugulyn v. Alberta, 2026 ABCA 68, the Alberta Court of Appeal reviewed a trial judge’s finding that an employee failed to fully mitigate his damages after he was constructively dismissed. The trial judge concluded that the employer, the Government of Alberta, constructively dismissed the employee after he was advised that he would be transferred to a different position that required education and experience that he did not have. The trial judge determined that the employee was entitled to a 23-month notice period, but he would have found a comparable position if he properly mitigated his losses within 17 months of his constructive dismissal.
On appeal, the employer argued that the employee completely failed to mitigate in not accepting the transfer to the different position. The Alberta Court of Appeal reviewed the test from Evans v Teamsters Local Union No 31, 2008 SCC 20, to determine if it was reasonable for the employee who was terminated to return to work for the same employer by considering relevant...
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