July 7, 2026
A non-union employee dismissed without cause is entitled to reasonable notice, or damages in lieu of notice. The flipside of that right is the burden to mitigate those damages, which means that the employee has to look for other work and that any income from the replacement job reduces the amount paid by the former employer.
Seems straightforward. But like many things in law, it is not all that simple.
THE ISSUE
What credit does the employer receive where the former employee admits that they did not look for a comparable job?
THE CASE
You may be surprised by the result in Williamson v. Brandt Tractor Inc.. The Ontario Court of Appeal upheld the ruling of the trial judge, who refused to reduce the damage award in the absence of efforts to mitigate.
As the Court of Appeal states, it is the employer’s burden to:
Establish not only that the respondent [the ex-employee] failed to pursue comparable employment, but also that such employment was available – that if reasonable steps had been taken, the respondent would have secured a comparable position.
Further, they go on to say that:
The appellant [the employer] failed to establish that comparable employment was available. The respondent’s choice not to seek employment in the sales field did not relieve the appellant of its burden in this regard.
This particular case did not stop there.
The employee DID find other work, but at a lower salary and in a “lower ranking” position.
The trial judge refused to deduct those earnings because they were not from a “comparable” position, and the employee’s burden is to try to find a comparable job.
An earlier Court of Appeal decision had contained a suggestion that earnings from an “inferior position” are not deductible from damages.
The court in Williamson clarified that this suggestion is not part of the law of Ontario. Subject to narrow exceptions “employment income earned during the notice period is generally to be treated as mitigation of loss”.
They overturned the trial judgment on that issue, reducing the damages by the amount of those earnings.
What are those narrow exceptions?
- Employment income during the statutory entitlement period is not deductible, because that entitlement is not damages.
- “if an employee has committed herself to full-time employment with one employer, but her employment contract permits for simultaneous employment with another employer, and the first employer terminates her without notice, any income from the second employer that she could have earned while continuing with the first is not deductible from her damages”.
Williamson also reinforces a further point not related to mitigation.
At trial, the employer had argued that no damages were payable because it had “just cause” to dismiss the employee.
The Court of Appeal agreed with the trial judge that the employer was not justified in dismissing Williamson based on a customer complaint. Although there was a history of disciplinary issues leading to warnings, it was up to the employer to prove that the complaint was serious enough to act as a “culminating incident” justifying dismissal.
The employer did not call the customer to testify. Instead, it relied on second hand evidence from a manager who took the complaint. Williamson’s version of events differed from that of the manager. Despite Williamson having credibility issues, the evidence on behalf of the employer was simply not good enough.
Just cause was not established, which led to Williamson recovering damages.
TAKEAWAYS
- A non-union employee dismissed without cause has an obligation to look for work to reduce the damages payable in lieu of notice, BUT the burden is on the employer to prove that a comparable job was available.
- Subject to narrow exceptions, employment earnings during the period of reasonable notice are deductible even if they are from an “inferior position”.
- Employers should be careful not to jump the gun and dismiss without sufficient evidence to prove cause.
- Both mitigation and just cause are complex issues. Both parties are better off if they each receive legal advice tailored to their specific situation. The cost of that advice is modest compared to the cost of a lawsuit.
HOW WEILERS LLP CAN HELP YOU
At Weilers LLP, we have a track record of almost 80 years advising and representing clients regarding employment law in Thunder Bay and throughout Northwestern Ontario. Our progressive approach melds with this proud tradition to put our clients’ best interests first. Whether you are an employer or an employee, this equips us to give you the sound advice you need, tailored to local and regional circumstances.
And if you find yourself in a situation where a lawsuit is necessary, we have the litigation lawyers to give you vigorous but cost effective representation.
For the timely advice you need, give us a call, and find out if Weilers LLP are the right lawyers for you.