The Superior Court recently released a decision on a motion in Anderson v. Cardinal Health Canada Inc., where a dismissed employee sought summary judgment.
Lillian Anderson worked for Cardinal for 22 years until she was dismissed on October 1, 2012. At the time of her dismissal, she was 55 years old, and her role was that of Accounting Manager. Her remuneration package was worth nearly $80,000 per year.
There were two reasons the motion failed: Mitigation, and availability of replacement employment.
This is actually really tricky to understand in the context of a motion for summary judgment.
Ordinarily, there's a reverse-onus on mitigation. The onus is on the plaintiff to prove dismissal without notice (which in most cases isn't that difficult), and if the defendant employer wants to argue that the plaintiff failed to mitigate, the onus is upon them to prove it on a balance of probabilities.
And it's a really high test: The employer needs to prove that the employee's efforts to find alternative employment were 'unreasonable in all respects'. Unless there's something very specific to be pointed to, such as "The employee started his own business" or "The employee spent two months in Europe" or "The employee declined this equivalent job offer", the Courts are very reluctant to second-guess an employee's job search. When a dismissed employee comes to Court with some meaningful evidence of a job search, that's often going to be sufficient; it's a rare case indeed where the Courts will say "Yes, you looked for a job, but you didn't try hard enough."
So, because the onus is upon the employer to establish this high threshold, it often isn't a big problem for employees.
However, on a motion for summary judgment, there's a different consideration of onus: There's an onus on the moving party (i.e. Anderson) to prove "that mitigation is not a genuine issue in this case requiring a trial". Which means that, where the employer is raising mitigation as an issue, the employee is going to need to be able to respond to the employer's evidence in a way that makes it pretty clear that the employer is not going to succeed.
The Court found that she failed to do so. To be clear: This is not a finding that she failed to mitigate. Rather, it's a finding that the interests of justice require a trial of the issue.
Her evidence was that she took courses in writing resumes and cover letters, and in other job search skills, and searched through multiple job resources and applied to 13 jobs in the eight months following termination.
The Defendant pointed out that other cases have involved employees who applied to over sixty jobs in similar time periods. In my humble opinion, that's a difficult argument to make much out of: The employee referred to found to have satisfied his obligation to mitigate (meaning that it can't indicate a threshold); the employee referred to was in a completely different type of position (meaning that it can't indicate any meaningful facts about the market), and there's no basis whatsoever for treating this employee as a 'standard'. Lots of people go above and beyond the minimum requirements for mitigation. I've had clients who applied for and accepted positions of much less prestige at much lower pay grades, despite that they clearly had no obligation to do so; it would be inappropriate to look to those individuals as an example of a standard to which others should be held.
However, the Defendant also searched through the same sources Anderson had used, and claimed to have found an additional 27 suitable jobs to which she didn't apply. That could be more compelling, but the judgment reflects an admission that some (it isn't clear how many) involved lower pay grades than what she was receiving at termination. (The judge doubted the credibility of the employee's explanation that she didn't apply for these jobs because they aren't comparable, because it appeared that she had applied for other jobs that were not comparable. I think there are problems with that analysis, but I won't go into it right now.)
The judge expressly stated that the "record does not show details about the 13 positions, such as hourly wage, benefits package, work hours, number of direct reports, managerial duties, or required qualifications". This suggests that there may be a weakness in the evidence. That being said, for a managerial-level full-time employee, you wouldn't always expect to see details regarding hourly wage and benefits package. and you would almost never see details of work hours or number of direct reports. At that level, a job ad should have some description of the duties and qualifications required, though.
It's not clear how much detail the employer provided regarding the other 27 positions, either, but from the framing of the judge's description, and the fact that the judge did not herself analyse the nature of the positions, I would infer that they were merely described and/or summarized by an affidavit, without producing the actual job ads.
I have my doubts as to how this issue was addressed: The judge referred to 'conflicting evidence', but I don't see any on the description of the facts. The employee applied to 13 jobs. The details of those 13 jobs aren't clear, one way or another. The employer found another 27 jobs it thinks she should have applied for. The details of those 27 jobs aren't clear, either. But the failure to mitigate, in this context, doesn't altogether turn on the characterization of the 13 jobs for which she did apply; it turns on the 27 jobs for which she didn't apply. If they're all comparable, then the employee probably needs to provide a reasonable explanation for why she didn't apply to have a chance of succeeding on the motion. But it's not at all clear to me, and the judge did not find, that the 27 jobs were comparable. If that's because of deficiencies in the employer's evidence, then that should not hold up a summary judgment.
Still, I have a feeling that the decision is partly informed by the fact that the reasonable notice period isn't over yet. The employee is seeking a 24-month notice period; the employer is arguing that the appropriate award is somewhere from 12-16 months. (In the vast majority of cases, you can expect the right answer to fall somewhere between the two positions.) Right now, we're less than 11 months into the notice period, so judgment would have the effect of relieving her of ongoing duties to mitigate...and given that her efforts thus far appear to have been lukewarm at best, the Court isn't prepared to do that. Remember my commentary on the Bernier case, where I remarked that the Court might be less willing to give summary judgment partway through the notice period in a borderline mitigation case?
Availability of Replacement Employment
There's some crossover between this issue and mitigation: How many jobs are out there that are reasonable replacement jobs for the plaintiff? How qualified is she for the jobs coming up? How long should her job-hunt reasonably take?
In some ways, I feel that this was a more solid area for the motion to fail: The plaintiff was under an obligation to lead evidence relating to the Bardal factors, so the failure to lead sufficient particulars on this point is understandably fatal.
On the other hand, I'm not sure I think this should hold up a judgment. In many cases (including Bernier), availability of replacement employment isn't even remarked upon, because the evidence is almost always weaker and more abstract than the other Bardal factors. Age is an easily-verified factor, length of service and character of employment are matters between the employer and employee - there's sometimes an issue about them, but they're matters about which the parties have all the relevant facts. Availability of replacement employment, however, requires the parties to lead evidence about the market, writ large, and without appropriately-qualified experts (which very seldom happens), it amounts to fairly broad and general statements by the parties, often not meeting any real standard of Court-admissible evidence, about their understandings or experience of the applicable job market. (The number of job postings is only one factor; the number of applicants to such postings is also quite relevant, and there's really no way for the employee to know that in a Court-admissible way.)
"Character of employment" has been described as being of relatively declining importance - the conclusion seems to be rising that it's only important because of the presumptions it raises regarding the availability of replacement employment: We usually presume that a senior executive will have a harder time finding a new job than a cashier. This is certainly not true as a universality, and may not even be true as a generality, but it seems to me that the law is moving towards a more practical approach that blends character of employment and availability of replacement employment together. If the parties can illustrate the availability of replacement employment in a meaningful way, the presumptions arising from character of employment will be less important. Where availability of replacement employment is in question, it seems to me that character of employment becomes more relevant.
And, quite frankly, when even with employer evidence, there are only 40 relevant job postings that arise in an 8-month period, it suggests against significant availability of employment. (Though, again, there's a question of how competitive the job market is.)
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