A Cautionary Note to Employees: A “Comparable” Job is just that… a “Comparable” Job

By: Lauren Mazzuca

In the recent decision, Gannon v. Kinsdale Carriers decision, the Ontario Superior Court of Justice found that an employee failed to mitigate her damages by refusing to accept an offer of “comparable employment”.

The employee, Ms. Gannon, was employed by the defendant for nearly 23 years. Initially, she was in the role of office personnel/accounts receivable. In 2015, her role expanded to also include  dispatch duties. As a result of the COVID-19 pandemic, the defendant was forced to close at the end of December 2020 and terminated all of its employees, including Ms. Gannon.

Following her termination, the employee sued for wrongful dismissal, seeking 22 months’ reasonable notice. The key issue that was to be determined at trial was whether Ms. Gannon failed to mitigate her damages.

In an effort to assist its terminated employees in finding comparable employment, the defendant contacted similar companies in the local area. One of the companies, Zehr Transport Limited (“Zehr”), contacted Ms. Gannon about a potential employment opportunity. Ms. Gannon interviewed with Zehr and was offered employment with similar job duties, at the same rate of pay, and same number of working hours. She decided that she was not interested in the position and presented evidence to the Court that the position was, in fact, not comparable to her previous role. She instead opted to take an online bookkeeping course and secured alternate employment seven months later in July 2021.

Ultimately, the Court concluded that the position was comparable to Ms. Gannon’s previous role and noted that “while [Ms. Gannon] wanted to ‘see what’s out there’ and pursue online courses, it should not fall to the defendant to fund her education pursuits.” As a result, the Court found that Ms. Gannon failed to mitigate her damages by refusing to accept the position and was therefore, not entitled to reasonable notice damages.

Takeaways

This decision is a reminder that although it is a defendant’s burden to show failure, a dismissed employee has a duty to mitigate their damages. An employee must make reasonable efforts to find  – and accept  – comparable employment. As the Court noted, “comparable employment does not mean identical employment. It means “a comparable position reasonably adapted to [the plaintiff’s abilities]”. In other words, a standard of perfection is not required. However, an employee has a duty to accept comparable employment, in some circumstances even if the job is not ideal.