Duty to Mitigate: When Minimal Efforts Are Acceptable

Duty to Mitigate -- Person reading an employment contract

In Systad v. Ray-Mont Logistics Canada Inc. the British Columbia Supreme Court found that an employee who underwent knee surgery two months after being terminated without cause did not fail to mitigate his damages by making only minimal efforts to find re-employment.


The employee, Roger Systad, was employed by Ray-Mont Logistics Canada Inc. for 18 years. At the time of his termination in 2011, the employee was a truck driver for the employer.

In 2008, the employee began having problems with his right knee and was advised in September of 2010 that he may have to undergo surgery to repair it. The employee informed his supervisor of this possibility.

On November 29, 2010, the employee was advised that he required a full knee replacement and would have to wait approximately 4-6 months for the surgery to be scheduled. The employee informed the employer of this update and that he would notify the employer of the date for the surgery as soon as it was scheduled.

On January 18, 2011, the employee’s knee surgery was scheduled for March 31, 2011. On January 19, 2011, the employee informed the employer of scheduled date and that he would likely be off for approximately three months following the surgery in order to recover. The employer inquired as to whether the employee intended on returning to work after his surgery, to which the employee informed that he did and had not intentions of retiring.

On February 3, 2011, the employer informed the employee that he was being terminated and provided the employee with eight weeks pay in lieu of notice in accordance with the province’s statutory requirements. Additionally, the employer offered to assist the employee in updating his résumé and to send it out to all of their contacts throughout British Columbia. The employee declined this further offer from the employer.

The employee brought an action for wrongful dismissal, and thereafter underwent his scheduled surgery on March 31, 2011.

British Columbia Supreme Court’s Decision

The employer submitted that the eight weeks notice provided to the employee at the time of termination was reasonable and that if the Court determined that additional notice was required, then it should be reduced due to the employee’s failure to mitigate his damages.

The Court reviewed the employee’s Bardal factors and determined that the eight weeks notice initially provided to the employee was insufficient and that the employee was entitled to a reasonable notice period of 18 months.

Additionally, the Court concluded that the employee did not fail to mitigate his damages. In reaching this decision, the Court stated,

“Mr. Systad is only now able to work, having just recently recovered from his knee surgery. I think it highly unlikely that Mr. Systad would have been in a position to compete with those who could have started employment immediately when he would have not have been in a position to return to work until he has sufficiently recovered from his knee operation and until he could drive a vehicle again – not only to get to work but to operate comparable equipment in any new employment.”

The Court further stated that when considering whether or not the employee had failed to mitigate his damages, “[r]egard must be made to [the employee’s] physical and mental condition” and “to take into account the reasonable period of time to get over the shock of having his employment terminated”.

After considering the above, the Court established that the employee did not fail to mitigate his damages by making only minimal efforts to find new employment, and therefore received the full 18 month award.

Points of Interest

Simply put, the above case demonstrates that the Court considers an employee’s specific circumstances when determining whether or not an employee has fulfilled their duty to mitigate.

As discussed in the above case, the Court allows employees a short period of time to recuperate from an unforeseen termination prior to their duty to mitigate commencing. Similarly, by taking into consideration the employee’s physical situation, the Court eliminates the duty to mitigate during the period of time when an employee is physically or mentally unable to do so.

Therefore, the Court’s application of the law regarding an employee’s duty to mitigate does not occur in a vacuum. Rather, the Court takes into account such external factors as the employee’s actual capabilities in the given situation when deciding whether or not there has been a failure to reasonably mitigate.

Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues.

Comments are closed.