Find a Lawyer

Failure to seek work 50km away reasonable in mitigation damages, Court of Appeal confirms

Employees who are wrongfully dismissed have an obligation to mitigate their damages, but that obligation does not extend to accepting a lengthy commute, as the Ontario Court of Appeal confirmed in reasons released July 7, 2016.  Nor does it require an employee to accept an alternative job offered by the employer where the circumstances of the dismissal make it reasonable for the employee to consider the relationship with the employer irreparably damaged.

Rueters LLP partner Barry Weintraub’s client, Lisa Maasland, was a senior computer systems engineer in the City of Toronto’s Traffic Management Centre who loved her job dealing with real-time operational challenges of traffic congestion. The City in seeking to save money reorganized its Traffic Management Centre in April 2014 and ousted Ms. Maasland, transferring her to a civil engineering job that was more administrative in nature.  The City stubbornly insisted it had a right to transfer her and fired her for refusing to accept the transfer, forcing her to take the City to court.

Justice Graeme Mew ruled in December 2015 that Ms. Maasland had been  constructively dismissed and humiliated and awarded her 26 months’ pay in lieu of notice and $78,000 in costs: Maasland v. City of Toronto, 2015 ONSC 7598.  He also rejected the City’s arguments that she had failed to mitigate her damages by refusing to accept the new City position  and by failing to apply for a job in East Gwillimbury, more than 50 km away from her home in Toronto.

The City appealed on the mitigation issues.  The Ontario Court of Appeal in reasons released July 7, 2016 dismissed the appeal.  The Court of Appeal upheld Justice Mew’s findings that it was reasonable for Ms. Maasland to have considered her relationship with the City irreparably damaged in light of ample evidence of humiliating treatment, and that it was not unreasonable for her to have refused to apply for a job more than 50 km away from her home.

See Maasland v. Toronto (City), 2016 ONCA 551 and 2015 ONSC 7598.

Barry Weintraub
Barry Weintraub

Barry has made more than 975 appearances in various types of proceedings, including many trials and appeals. His diverse experience includes corporate/commercial Litigation, environmental law, and employment litigation.