Law Times

Page 12 November 11, 2013 Law Times • FOCUS Case emphasizes duty to mitigate by accepting re-employment BY MICHAEL McKIERNAN For Law Times A n Ontario Court of Appeal decision that confirmed a constructively dismissed worker's duty to mitigate his losses by returning to his old job will make employees think again about suing their employer, according to a Brampton, Ont., lawyer. Manager Earl Chevalier was laid off from his job at Active Tire & Auto Centre Inc. in Niagara Falls, Ont., before the company rescinded the decision on the basis of legal advice. Chevalier had already filed a wrongful dismissal claim against Active Tire by the time the company offered him his job back and rejected the proposal on the basis of a poisoned work environment. FourPointLearning_LT_Sep30_14.indd 1 Chevalier lost at trial last year and then on appeal in September, a situation that left him with almost $60,000 in costs awards hanging over him. Inna Koldorf, a lawyer with Crawford Chondon & Partners LLP in Brampton, says the decision and the size of the costs awards will send a chill to potential plaintiffs considering launching wrongful dismissal suits. "It's a great decision for my clients. They're often faced with wrongful dismissal claims when there's a change in the terms of employment. Cases like this one create a buffer between them and claims." Chevalier v. Active Tire & Auto Centre Inc. isn't the first case to tackle the issue of employers that offer their staff a chance to mitigate damages by returning to work at the same place. The circumstances mirror those in the 2008 Supreme Court of Canada case of Evans v. Teamsters Local Union No. 31, in which the country's top court ruled the "critical element" in such cases is that the return shouldn't expose an employee to "an atmosphere of hostility, embarrassment or humiliation." However, Koldorf says the lower courts have inconsistently applied Evans and hopes the appeal court's endorsement of it will change that. "Evans was a pretty clear decision, but some judges have been reluctant to follow it and found reasons not to," she says. "I do hope this is going to be a case that lower courts will follow." Orlando Rosa, who handled the trial and the appeal for Active Tire, said his clients were "puzzled" 13-09-26 5:41 PM CITED BY THE SUPREME COURT OF CANADA CANADIAN EMPLOYMENT LAW STACEY REGINALD BALL "The most comprehensive text on employment law in Canada. It is carefully constructed and accurate." Canadian Bar Review MORE THAN 6,145 CASES CITED Canadian Employment Law is a one-stop reference that provides a thorough survey of the law and analysis of developing trends, suggesting potential avenues of attack as well as identifying potential weaknesses in the law. 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Plus, all topics are illustrated with extensive case law and useful footnotes. AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.ca .c Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. CANADA LAW BOOK® Carswell-26373-Feb25-13.indd 1 www.lawtimesnews.com 13-02-20 10:32 AM by Chevalier's decision to appeal the trial decision but "pleased" by the outcome at the appeal court. "I think it's one of a number of recent cases that swing the pendulum back towards employers. Now, when you're advising an employee who's been terminated and given an opportunity to return, you have to take a very good, hard, objective look at the circumstances," says Rosa. Chevalier's troubles began in March 2007 when Active Tire picked up 28 Speedy Muffler service centres in a deal, including the Niagara Falls location where Chevalier had spent 33 years. Over the next 18 months, Chevalier had a number of run-ins with management over the performance of the Niagara Falls service centre and Chevalier's alleged non-compliance with Active Tire's corporate operating procedures manual. During that period, the company moved Chevalier to other service centres in the Niagara region, asked him to consider relocating to Brampton, and had him spend some time at the head office in Toronto. In October 2008, the company finally laid off Chevalier as it claimed the Niagara Falls centre where he was then working could no longer support two managers. Chevalier launched his lawsuit two weeks later that claimed the company's actions were part of a campaign to force his resignation. But days later, Active Tire offered Chevalier his position back. Chevalier refused the offer but continued to receive his salary and benefits for a month after his termination and eventually found another job 17 months later. At trial, Active Tire admitted to constructively dismissing Chevalier and that his notice period should have been at least 18 months. But the company argued he should get no damages due to his failure to mitigate. Ontario Superior Court Justice Richard Lococo agreed with the company, finding Chevalier's return wouldn't have obliged him to work "in an atmosphere of hostility, embarrassment or humiliation, the critical element identified in the Evans decision." Then in September, a unanimous three-judge panel upheld Lococo's decision, finding there was no basis for interfering with his conclusions. "Viewed objectively, Mr. Chevalier's rejection of Active Tire's re-employment was unreasonable," they wrote in the Sept. 11 judgment. Colin Youngman, who practises with Hicks Morley Hamilton Stewart Storie LLP in Kingston, Ont., says Active Tire's conciliatory attitude following Chevalier's layoff was critical to both decisions going its way. "There's a good lesson there: to be honest and forthright and clear in what the offer of re-employment was. It didn't leave the plaintiff with any room to argue," he says. LT

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