Here are some of the court cases that stood out in 2023
Every month, I review every single employment law case across Canada and summarize the most important ones for Thomson Reuters’ Dismissal and Employment Law Digest. The digest is meant for lawyers, employers and other voracious readers of employment law, but some cases are of wider interest, too. Here are some from the recent past that touch on common employment law issues:
Jardine v. Phoenix Petroleum
Subject to employment standards minimums, employees can only seek their actual lost income over whatever period of time the court assesses damages. In other words, if a court decides that an employee is entitled to 12 months severance, all they will be entitled to is what they lost during those 12 months. From the 12 months will be deducted what the employer already paid in severance and any income earned during those 12 months. But not only new income an employee earns will be deducted from damages for wrongful dismissal: any income they could have reasonably earned as a result of the employee’s duty to mitigate — by seeking and accepting comparable work — will be deducted, too.
That formula raises the question of what is required for an employer to show a failure of an employee to mitigate. An answer was provided in Jardine v. Phoenix Petroleum, a New Brunswick case in which the judge ruled that failure to look for other work, so as to reduce an employee’s severance claim, can only be established by proof that the...
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