Mitigation: What’s in an Age?

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Following termination, an employee has a duty to reasonably attempt to mitigate their damages caused by their termination. In other words, an employee cannot simply sit back and wait to try and collect from their former employer in regards to notice. An employee must take reasonable steps to try and obtain new work, failing which the employee may experience a reduction of the notice entitlements to which they are otherwise entitled. However, does an employee’s age impact on their duty to mitigate or the amount of reduction that occurs in the event that they fail to fulfill such duty? This question was answered in the recent British Columbia Supreme Court decision of Dodge v. Signature Automotive Group Ltd.


After approximately 20 years of employment and at the age of 59, the employee, who was employed as a financial services manager for the employer’s car sales business, was terminated without notice. As a result of his termination, the employee initiated legal proceedings seeking, among other things, damages for wrongful dismissal.


Given the employee’s Bardal factors, which includes, but is not limited to, the employee’s age, being 60 at the time of the Trial, the Court established that the employee’s notice entitlement as a result of his termination was 17 months. As part of the Court’s analysis in reaching this decision, the Court stated, “…for the particular work the [employee] was doing, I expect that the marketplace prefers 50-year-olds over 60-year-olds, and probably 45-year-olds over both. Thus, the [employee’s] age is a factor in his favour under the Bardal analysis.”

However, after reviewing the evidence provided with respect to the employee’s attempts to reasonably mitigate his damages caused by his termination, the Court determined that the employee had failed in this regard. Specifically, from the date of the employee’s termination up to the time of Trial, being approximately 1 year in length, the employee had only applied for 7 new employment opportunities. As a result, the Court stated the following: “In my view, the [employee] did not do enough to find new work. It is never easy to pound the pavement and knock on doors after one has been let go from a job, particularly after many years. But it is, nonetheless, the duty of a plaintiff employee to act reasonably so as to secure new work if it is available. In my view, it was impossible for the [employee] to know what the job market held for him when he did not do enough to learn what the prospects really were. Literally knocking on doors, leaving resumes, asking to have lunch and taking other such steps are necessary, certainly in retail car sales, where word of mouth and personal links appear to count for a great deal.”

Accordingly, the Court reduced the notice award that the employee would have otherwise been entitled to. However, given the employee’s age at the time of the Trial, the Court decided that the reduction in notice should be less then it otherwise would be. Specifically, the Court stated, “In my view, the fact that [the employee] is 60 means that it was less likely that alternative employment would have been achieved. It is only for that reason that I have not reduced more substantially the applicable notice period.”

Lesson for Employees

While an employee’s age may be a factor that could hinder their ability to obtain new employment, the above decision demonstrates that it does not relieve an employee’s duty to reasonably attempt to mitigate their damages following termination. Rather, as indicated in the above decision, no matter how old an employee may be they are still required to knock on doors, leave resumes, ask to have lunch and take other such steps that are necessary to try and obtain new employment. However, it appears that the amount of a reduction that will occur to the notice period in the event that an employee fails to reasonably attempt to mitigate their damages will depend on an employee’s age with a lesser reduction for more senior employees.

Lesson for Employers

Despite the finding in the above decision with respect to the employee’s failure to reasonably attempt to mitigate his damages, it can be very difficult for an employer to succeed in establishing that an employee has failed to reasonably mitigate. Therefore, employers should seek the guidance of Employment Law Lawyers to assist in this regard and increase the likelihood that a reduction to an employee’s notice entitlement occur.

Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues. Whether you are an employer or an employee, we can help. Contact us to see how.

See also our article published in Canadian Employment Law Today, October 9, 2014, “Mitigation: What’s in an age?”.

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