Law Times

Law Times • OcTOber 4, 2010 The legal side of bedbugs W ith the body politic of Premier Dalton McGuinty's govern- ment lying bleeding like Julius Caesar on the Ides of March, perhaps a change in program- ming is in order because rub- bernecking at the scene of car- nage is so unbecoming. So it's on to other much- needed distractions, particu- larly the bedbug summit called by Liberal MPP Mike Colle at Queen's Park last week. It's no joke. Bedbugs are a seri- ous issue, and if all of the assembled experts are correct, we're in a pan- demic bigger than H1N1. The critters lurk in mattresses, furniture, power outlets, and light switches and along baseboards in the hunt for human blood at night. The media has been all over the issue with headlines and vid- eos about them and the sudden leap in infestations in cities across Canada, so much so that the re- sulting fear of bedbugs is probably greater than it should be. But what's more interesting for the profession, perhaps, is the fact that bedbug infestations in the United States have triggered litigation, as well as the discov- ery that the liability insurance carried by hotels, motels, and the like is falling short in cover- ing the resulting costs. Despite predictions that we'd follow suit, the problem hasn't hap- pened here with the same intensity. There have been a few lawsuits filed, notably one by a Toronto man who sued a Winnipeg hotel claiming he was infected after a night's stay in 2007. I suspect, however, that some firms are hard at work. Bedbugs are a pain. Their bites hurt and get itchy and infected. They don't care about income level, culture or race, says Mike Heim- bach of Abell Pest Control Inc. "You could put your pants on in the morning and, if there was a bedbug there, carry it to the of- fice and then you could get an infestation there," says Heimbach. "These guys love to travel and they hitchhike. You could pick up a bedbug riding the TTC." Last Wednesday, the industry laid out some steps the govern- ment should consider in fighting back against the epidemic. Aimed mostly at large institutions, the measures would require some regu- latory changes but could be easily adopted under something like the Occupational Health and Safety Act, according to Heimbach. Colle is already pushing his private member's bill, the renters' right to know act, which would force landlords to reveal whether a unit had been infected by bed- bugs to prospective tenants. Still, as Heimbach points out, education is probably a better tool than legislation in this case, par- ticularly since getting front-line workers at institutions to recognize the critters and take immediate action is the best defence against their spread. If it needs to be en- shrined in a regulation somewhere, it should be. "Bedbugs are an issue anywhere Inside Queen's Park By Ian Harvey we have people in beds, in hotels, hospitals, prisons, care centres, any- where," says Heimbach. "But many don't recognize them. The key is to detect a small infestation and stop it before it blooms and grows." All of this is expensive at about $2,000 or so for the average apartment and more for a larger house. In multi-unit buildings, the bugs travel from one home to the next in search of food, so even if one infestation ends, it can pop up somewhere else. Killing the critters without toxins means a series of protocols, such as bagging mattresses and box springs with bug-proof enclosures, setting special cup traps near furniture and beds, and putting out sticky devices to snare any loose bugs. A pest-control agency should also come in and use either steam or extreme cold to kill off the bugs in places where they like to hide, such as behind picture frames and along baseboards. While steam has been used for years to heat up house interiors and bake the insects to death, it's expensive and requires extensive preparation. As an alternative, cryogenic treatment has also just arrived here, although it was delayed by Canada's favourite sport: the bureaucratic ap- proval process. It uses liquid carbon dioxide and nozzle technology to create "snow" pellets that freeze an area in a flash and literally cause the bugs' exoskeletons to crack open. They die as a result. Lorne Chadnick in Ottawa figured he'd hit on a great idea when he spotted a Swedish cryo- genic system at a trade show. Two years and tens of thousands of dollars later, he's finally gotten it approved in Ontario after navi- gating a maze of red tape. "They warned me it could take years and cost me $150,000," says Chadnick, who notes he didn't spend quite that much. Still, who would have thought it would be so hard to get snow approved in Ontario? It may be new here but it's been used for a while in Europe, the United States, and other provinces. Chadnick secured Health Canada approval for the system last year, but that wasn't good enough for Ontario. It wasn't until a couple of weeks ago that he got approval from the province's Min- istry of the Environment. "It's much more effective and environmentally friendly than chemicals and easier to use than heat," says Chadnick. "It's perfectly safe for humans and pets." Let it snow, let it snow, let it snow. LT Ian Harvey has been a journalist for 32 years writing about a diverse range of issues including legal and political affairs. His e-mail address is ianharvey@rogers.com. COMMENT Analyzing the duty to cause a breach of it isn't actionable. The reference in the case law to the duty mitigate in wrongful dismissals T BY NIKOLAY Y. CHSHERBININ For Law Times he duty to mitigate arises in almost every wrongful dismissal case. But it's not a duty in the strict legal sense be- to mitigate derives from the general proposi- tion, rooted in contract law, that a wronged plaintiff can't recover damages for reasonably avoidable economic loss. Thus, in wrongful dismissal cases, it's in- cumbent on the terminated employee to re- duce the damages pay- able by taking reasonable steps to secure compa- rable alternate employ- ment. The duty to miti- gate isn't one owed by dismissed employees to a defaulting former employer. Rather, it's one employees owe to themselves, having regard to their own interests and not that of the for- mer employer. The onus rests upon employers to prove not only failure to take steps to mitigate but also that, had the employees taken reason- able steps, they would likely have obtained comparable employment. Any gap in the evidence accrues to the terminated employ- ee's benefit. However, should the court find a failure on the employee's part to mitigate, it may deduct from the award of damages for pay in lieu of notice an amount it considers the employee should have earned. A terminated employee's obligation to mitigate arises in the context of several em- ployment scenarios. In wrongful dismissal cases, an employee's employment is termi- nated on inadequate notice or pay in lieu thereof. Subject to the terms of the contract of employment, the termination triggers the employee's duty to mitigate. Red Deer College v. Michaels is the leading Canadian decision on that duty. The vexing question is whether dismissed employees are entitled to use the reasonable notice period to seek a position commensu- rate with their level of experience and skills or whether they're obligated to accept a lower- paying position to reduce their economic loss. In Chann v. RBC Dominion Securities Inc., the court found an investment banker wasn't ob- ligated to seek a lower-paying generalist posi- tion in another firm until he had completed a reasonable search for comparable employ- ment. As the court noted, the employee was "entitled to use the reasonable notice period to seek a position commensurate with his level of expertise and skills." The Chann rationale folds perfectly into the British Columbia Court of Appeal's posi- tion in Forshaw v. Aluminex Extrusions Ltd., in which it aptly noted that the duty to mitigate involves taking "such steps as a reasonable person in the dismissed employee's position would take in his own interests — to main- tain his income and his position in his indus- try, trade or profession." But how does an employee's new and high- er-paying employment, secured through miti- gation, affect damages the former employer must pay? There are conflicting lines of cases in which either the entire amount earned at the new job must be deducted or damages stop and the employer doesn't get a credit for the increased income. In constructive dismissal cases, an em- ployer unilaterally makes substantial changes to the essential terms of an employment con- tract, thereby giving an employee a right to treat the contract as being at an end. Given that both wrongful dismissal and construc- tive dismissal involve employer-imposed www.lawtimesnews.com Speaker's Corner termination of the employment contract, there's no principled reason to distinguish be- tween them when evaluating the need to miti- gate. The question of whether it's reasonable for an employee to mitigate constructive dis- missal by accepting alternative employment in a demoted position with no immediate change in compensation is a recurring source of uncertainty. Some appellate courts have held that an employee may have an obligation to continue working for the employer. Oth- ers, meanwhile, have found that an obligation to stay in the job will arise only in a situation of mutual understanding and respect in which neither the employer nor the employee is likely to put the other's interests in jeopardy. For example, in Gal- braith v. Acres Interna- tional Ltd., the Ontario Court of Appeal affirmed the trial judge's find- ing that the employee was under no obligation to mitigate his constructive dismissal by accept- ing a demotion from chief financial officer to treasurer and corporate secretary with the same salary because it was demeaning to him. Simi- larly, in Wilding v. Qwest Foods Ltd., the B.C. appeal court found that a general sales manager didn't have to accept a sales representative posi- tion with no change in salary because he would have suffered a substantial loss of prestige and authority with the resulting embarrassment. A common thread running through deci- sions in this category suggests that construc- tively dismissed employees aren't obligated to accept a job in a demoted position to sat- isfy their obligation to mitigate if the basis of trust, good faith, and sincerity are gone from the employment relationship. Fixed-term contracts frequently raise a question of whether terminated employees are obligated to take reasonable steps to miti- gate their damages. In Canadian Ice Machine v. Sinclair, the Supreme Court of Canada held that where the fixed-term contract makes no mention of the amount of damages payable to dismissed employees, they must still at- tempt to mitigate their economic losses. More recently, in Graham v. Marleau, Lemire Securities Inc., Justice Ian Nordheimer con- cluded: "Whether a contract is a fixed term contract or a contract of indefinite duration, the principle of mitigation applies to a claim arising from any breach of that contract." A non-competition clause in an employ- ment contract raises an intriguing question about whether the existence of the restrictive covenant relieves a dismissed employee from the duty to mitigate. This year, the Ontario Court of Appeal affirmed the trial judge's finding in Link v. Venture Steel Inc. that the existence of a non-competition obligation wouldn't, as a matter of course, completely relieve a dismissed employee from the legal duty to mitigate. According to the trial judge, "The existence of obligations contained in a restrictive covenant ought to only be a fac- tor in considering the reasonableness of the dismissed employee's efforts." The case law makes it clear it will al- ways be a question of fact and personal circumstances, rather than law, that deter- mine the dismissed employee's obligation to mitigate. The employee's decision not to mitigate will be judged on the standard of reasonableness, not perfection. The burden that lies on the employer to prove that the employee has failed in the duty to mitigate is by no means a light one. LT Nikolay Y. Chsherbinin is an employment law- yer at Grosman Grosman & Gale LLP in Toronto. He can be reached at 416-364-9599 or nikolayc@grosman.com. PAGE 7

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