Typically, when an employee makes a claim for common law wrongful dismissal damages, he or she is required to make reasonable efforts to mitigate their damages. Mitigation often requires the employee to try and attain another job in the period after their dismissal. Any income earned within the common law reasonable notice period may be deducted from the total damages that the employer would otherwise have to pay, and, if an employee did not make a reasonable attempt to mitigate, the employer’s damages may be reduced by the amount the employee would have reasonably earned, had the employee mitigated. The Court of Appeal’s decision in Brake v. PJ-M2R Restaurant Inc. marks a significant shift in the interpretation of this principle. In this decision, Ontario’s highest court chose not to deduct any monies from an employee’s damages award when she took a job that was far inferior – both with respect to compensation and prestige — from the…
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