“Ill-conceived, poorly-executed” job search, “Alberta sojourn” breached Ontario employee’s duty to mitigate damages in OHSA-retaliation case

Even though an employee “won” his safety-retaliation case under the Occupational Health and Safety Act after his employer failed to file a Response, the employee’s damages were reduced because his job search was shoddy.

After initially trying to find a job around his father’s Ontario home, where he could live rent-free, he “decided to abandon Ontario for an unspecified and illusory opportunity in Calgary” which, evidently, did not come through.

The Ontario Labour Relations Board stated:

“In the result, I am of the view that Stringer did not demonstrate that he acted reasonably in his job search by leaving Ontario for Alberta and after his arrival there.  While the responding party bears the onus of establishing a want of mitigation, the Board cannot ignore the approach taken and effort expended by the applicant in determining the period for which he might be compensated in a proceeding such as this.  To put the matter starkly, if a person such as the applicant did nothing at all to attempt to find work and simply argued that the employer was required to prove that by doing nothing the individual had passed up specific opportunities, the Board would, in my view, be justified in concluding that the onus on the employer did not arise and the individual would be restricted to a nominal level of compensation.  So too, where there is evidence of the person’s making some attempt to obtain other employment, but the approach taken was ill‑conceived, poorly executed, or unsupported by a logical factual basis, the Board should hesitate to conclude that the applicant has made reasonable efforts to mitigate and should reflect that concern in its decision with regard to lost wages.  The applicant is not to be held to a standard of perfection, but, as the Board held in Adams v. W.E. Hall & Sons Company, supra, the applicant’s entitlement to compensation is dependent upon his satisfying the Board that he made “reasonable efforts to mitigate [his] damages”.

Although the employee requested 30 weeks’ pay as damages, the OLRB decided that that would compensate him for the period of his “Alberta sojourn”, which would not be appropriate.  In the end, the OLRB decided that he was entitled to 17 weeks’ lost wages.

Stringer v Grand Tappattoo Resort, 2015 CanLII 26124 (ON LRB)

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Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

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