Case information

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Employment law - Wrongful dismissal - Damages - Mitigation - Whether employee’s damage award for wrongful dismissal ought to be reduced or eliminated because of his failure to mitigate his damages by accepting a new offer of employment from the employer.

Donald Norman Evans was employed for over 23 years as a business agent in the Teamsters’ Whitehorse office. He was dismissed after a new union executive took office. During negotiations, Evans’ lawyer wrote to the union, indicating that Mr. Evans was prepared to accept 24 months’ notice of termination of his employment and suggested that this could be granted through 12 months of continued employment followed by a payment of 12 months of salary in lieu of notice. Teamsters replied that it could not accept that proposal, and requested that Mr. Evans return to his employment no later than June 1, 2003, to serve out the balance of his notice period of 24 months. The total notice period was specified as January 1, 2003 until and including December 31, 2004. Teamsters went on to say that refusal of the offer would be treated as just cause for immediate termination. At issue at trial was whether Evans failed to mitigate his damages by not taking up this offer.

The trial judge concluded that the Appellant had been wrongfully dismissed, that he should have received 22 months of notice and that he had not failed to mitigate his damages. The Court of Appeal allowed the Union’s appeal and set aside the award of damages in its entirety. Thackray J.A. held that the evidence did not support the conclusion that Mr. Evans’ circumstances, viewed objectively, justified his refusal to resume employment with the union.