Held, the appeal should be dismissed.
Per Gillese J.A. (Pepall J.A. concurring): The trial judge did not err in finding
that the plaintiff was constructively dismissed. The demotion was unilateral —
the plaintiff did not consent to it and there was no suggestion that either an
express or implied term in the employment contract authorized the change in
position. The demotion would have been detrimental to the plaintiff if for no
other reason than that her benefits would have been meaningfully inferior. A reasonable person in the plaintiff’s situation would have felt that the demotion
amounted to a change to the essential terms of her employment contract.
The plaintiff was not required to mitigate her damages by working in an
atmosphere of hostility, embarrassment or humiliation.
The trial judge did not err in awarding the plaintiff damages based on a notice
period of 20 months, inclusive of her entitlement to statutory termination and
severance pay. He was entitled to take the credit letter into account in finding
that the plaintiff had the equivalent of 20 years of service with the defendant.
During the notice period, the plaintiff earned income from employment with
Sobey’s, Tim Horton’s and Home Depot. She also received employment income
benefits. She had worked part-time for Sobey’s, to the defendant’s knowledge,
while working full-time for the defendant. The trial judge was entitled to find
that the plaintiff made reasonable efforts to mitigate her damages despite not
applying for other restaurant manager positions. The EI benefits received by the
plaintiff during the notice period were not received in mitigation of loss and were
not deductible from damages for wrongful dismissal. The employment income
earned by the plaintiff during the statutory entitlement period was also not
deductible from damages. The plaintiff was entitled to receive her statutory
entitlements even if she secured a new full-time job the day after she was terminated. Therefore, the Tim Horton’s income (which was earned during the plaintiff’s statutory entitlement period) was not subject to deduction as “mitigation
income”. The income earned by the plaintiff from Sobey’s during the common law
notice period was not deductible from damages. For income earned by a plaintiff
after a breach of contract to be deductible from damages, the performance in mitigation and that provided or contemplated under the original contract must be
mutually exclusive. That is not the case where a plaintiff worked full-time for one
employer but her employment contract permitted simultaneous employment
with another employer. The plaintiff’s work for the defendant and her second
job with Sobey’s while working for the defendant were not mutually exclusive.
Finally, the evidence regarding the plaintiff’s Home Depot income was unclear.
In those circumstances, the modest sum of $600 that the plaintiff earned from
Home Depot should not be deducted from damages.
Per K.N. Feldman J.A. (concurring): Accepting the reasons and result of Gillese
J.A., the trial judge was entitled to find that the position the plaintiff held with
Home Depot was so substantially inferior to the management position she held
with the defendant that the former did not diminish the loss of the latter. The
trial judge did not err in declining to deduct the Home Depot income that the
plaintiff earned during the common law notice period from her damages for
wrongful dismissal. Where a wrongfully dismissed employee is effectively forced
to accept a much inferior position because no comparable position is available,
the amount she earns in that position is not mitigation of damages and need not
be deducted from the amount the employer must pay.
Boland v. APV Canada Inc.,  O.J. No. 510, 250 D.L.R. (4th) 376,
195 O.A.C. 152, 38 C.C.E.L. (3d) 95,  CLLC ¶210-012, 137 A.C.W.S. (3d)