



COURT OF APPEAL FOR ONTARIO

CITATION: Fillmore v. Hercules SLR Inc., 2017 ONCA 280

DATE: 20170404

DOCKET:
C62566

Juriansz, Lauwers and Hourigan
JJ.A.

BETWEEN

Roy Fillmore

Plaintiff (Respondent)

and

Hercules SLR Inc.

Defendant

(
Appellant
)

Craig R. Lawrence, for the appellant

David Vaughan, for the respondent

Heard: March 31, 2017

On appeal from the judgment of Justice James Diamond of
    the Superior Court of Justice, dated July 20, 2016 with reasons reported at
    2016 ONSC 4686.

ENDORSEMENT

By the Court:

[1]

The summary motion judge granted the plaintiff
    damages for wrongful dismissal based on a 17 month notice period. Although the
    appellant does not challenge the length of the notice period, it argues that
    the respondent failed to mitigate. In particular, the appellant argues that the
    respondents obligation to mitigate obliged him to accept the appellants offer
    of employment at a salary roughly 20% less than his former salary.

[2]

The appellant challenges the motion judges
    finding that the respondent was not obliged to accept the offer and therefore
    had not failed to discharge his duty to mitigate. For the reasons that follow,
    we dismiss the appeal.

[3]

The respondent was 51 years old and was employed
    as the defendants director of purchasing. He had been employed by the
    appellant for about 19 years and received a salary of about $82,000 with some
    additional benefits.

[4]

The appellant sought to restructure and decided
    to terminate the respondent without cause. The appellant provided the respondent
    with a severance offer and a new employment offer. The severance offer
    required him to sign and return a full and final release in exchange for which
    he would be provided with eight weeks written notice in accordance with the
    requirements of the
Employment Standards Act
,
2000
,
    S.O. 2000, c. 41
, and providing him with an additional payment
    of 12 weeks severance.

[5]

In the new employment offer he received on the
    same day, the respondent was offered a permanent full time position as the
    supervisor of service at a salary of more than 20% less than his current salary
    for doing the same work. The offer also provided him with a six month income
    guarantee at his old salary to assist him in his transition.

[6]

Both the offers were open for acceptance until
    August 24, 2015. The respondent did not accept either.

[7]

The following day, on August 25, 2015, the
    respondent sent an e-mail to the applicants representative asking whether the
    termination letter was now in effect. The representative sent an e-mail
    restating the terms of the severance offer and the new employment offer.

[8]

The trial judge puts the applicants position
    squarely in paragraph 24:

The defendant submits that Hubleys email renewed the expired
    New Offer of Employment to the plaintiff, and as such the plaintiff was offered
    a reasonable opportunity to mitigate his damages by returning to work for the
    defendant.  The defendant thus submits that by not accepting the New Offer
    of Employment, the plaintiff failed to discharge his duty to mitigate his
    damages.

[9]

The appellant relies on the decision of this
    court and
Farwell v. Citair Inc
, 2014 ONCA
    177, in particular para. 20:

There may also be merit in the argument that the circumstances
    here would support the imposition of an obligation on Mr. Farwell to mitigate
    by working through the notice period. But the appellant faces another obstacle,
    which, in my view, is insurmountable. To paraphrase
Evans
[
Evans
    v. Teamsters Local Union No. 31
, 2008 SCC 20, [2008] 1 S.C.R. 661], the
    appellant's mitigation argument presupposes that the employer has offered the
    employee a chance to mitigate damages by returning to work. To trigger this
    form of mitigation duty, the appellant was therefore obliged to offer Mr.
    Farwell the clear opportunity to work out the notice period
after
he refused to accept the position of Purchasing Manager and told the Appellant
    that he was treating the reorganization as constructive and wrongful dismissal.

[10]

The motion judge concluded that the new offer of
    employment was not consistent with this courts decision in
Farwell
because it was not an offer to work through the notice period.
    Instead, it was simply an offer for a new full time position at much less compensation.
    As the motion judge observed at para. 30:

There is nothing in the second letter which confirms that the
    potential acceptance of the New Offer of Employment would be without prejudice
    to the plaintiffs rights arising from his dismissal from his former position.

The motion judge concluded, at
    paragraph 31:

There is no obligation on the plaintiff to effectively risk
    handing the defendant a Full and Final Release through the back door and under
    the guise of mitigation efforts.

[11]

We agree.

[12]

The relevant test from
Evans
was set by Bastarache J. at para. 30:

This Court has held that the employer bears the onus of
    demonstrating both that an employee has failed to make reasonable efforts to
    find work and that work could have been found (
Red Deer College v. Michaels
,
    [1976] 2 S.C.R. 324). Where the employer offers the employee a chance to
    mitigate damages by returning to work for him or her, the central issue is
    whether a reasonable person would accept such an opportunity.

[13]

The motion judge found that on the facts of this case a
reasonable person in the respondents position is not obliged to
    accept a term risking waiver of the wrongful dismissal claim. We see no error
    in this finding.

[14]

The appeal is dismissed with costs in the agreed
    amount of $7,000
for the appeal inclusive of disbursements and taxes.

R.G.
    Juriansz J.A.

P.
    Lauwers J.A.

C.W.
    Hourigan J.A.


