• First Reference
  • About us
  • Contact us
  • Blog Signup 📨

First Reference Talks

Discussions on Human Resources, Employment Law, Payroll and Internal Controls

  • Home
  • About
  • Archives
  • Resources
  • Buy Policies
You are here: Home / Employment Standards / Refusing a 50 km commute not a failure to mitigate

By Simon Heath, BA, MIR, LLB, Heath Law | 2 Minutes Read October 17, 2016

Refusing a 50 km commute not a failure to mitigate

employee-commuteIn wrongful dismissal litigation, one of the key issues is always the dismissed employee’s duty to mitigate. When an employee is terminated or constructively dismissed, he or she has a positive obligation to minimize his or her damages by seeking out comparable, alternate employment. Anything the employee earns in the common law notice period is subtracted from what the company owes. An issue that often arises is whether or not it was reasonable for an employee to refuse exploring a potential new job because of the length of the commute.

In the case of Marsland v. City of Toronto 2015 ONSC 7598; appeal dismissed 2016 ONCA 551, the issue of the length of a commute was before a judge in a motion for summary judgement.

In this case, the court concluded that the plaintiff who was 56 years old and had over 25 years of service had been constructively dismissed when her employer, the City of Toronto, made fundamental and unilateral changes to her position. The plaintiff was awarded 26 months of common law notice.

The employer bears the onus of proving that an employee has failed to mitigate her damages.

In this case, the City of Toronto tried to argue that the Plaintiff failed to mitigate by refusing to explore a comparable job in East Gwillimbury which was more than 50 kms away from her residence. The Judge rejected this argument and held that it was reasonable that the plaintiff would not explore a job with a “significant daily commute”.

The City of Toronto appealed the decision on mitigation and specifically that the Plaintiff’s failure to consider employment outside of Toronto was unreasonable. The Ontario Court of Appeal rejected this argument and held that the Judge had not made any overriding error and that it was not unreasonable for the employee to reject a position based on the 50 km commute from her home.

This case is significant for a number of reasons. The GTA is becoming an integrated economic hub stretching from Hamilton to Oshawa. However, employees may now be able to argue that if commutes are too long, then they are not obligated to look for comparable jobs beyond a certain distance from their house, even if they have a vehicle and could do the commute. It will be interesting to see if other courts agree with this decision.

  • About
  • Latest Posts
Follow me
Simon Heath, BA, MIR, LLB, Heath Law
Employment Lawyer and principal at Heath Law, Employment Lawyers
Simon Heath, BA, MIR, LLB, is the Principal of Heath Law, Employment Lawyers in Mississauga, Ontario. Simon represents both public and private-sector employers and employees (unionized and non-unionized) at all stages of the employment relationship with a focus in the areas of employment law, labour law and human rights law; these representations are made at all levels of courts and all administrative tribunals.
Follow me
Latest posts by Simon Heath, BA, MIR, LLB, Heath Law (see all)
  • What are the “exceptions” to the equal pay provisions of the Employment Standards Act - May 30, 2018
  • 5 employment law predictions for 2018 - December 20, 2017
  • Ontario Court of Appeal confirms offer of employment is consideration after an asset sale - November 22, 2017

Article by Simon Heath, BA, MIR, LLB, Heath Law / Employment Standards, Payroll, Union Relations / common law notice, constructively dismissed, employment law, failure to mitigate, Marsland v. City of Toronto, mitigate damages, wrongful dismissal

Share with a friend or colleague

Get the Latest Posts in your Inbox for Free!

Electronic monitoring

About Simon Heath, BA, MIR, LLB, Heath Law

Simon Heath, BA, MIR, LLB, is the Principal of Heath Law, Employment Lawyers in Mississauga, Ontario. Simon represents both public and private-sector employers and employees (unionized and non-unionized) at all stages of the employment relationship with a focus in the areas of employment law, labour law and human rights law; these representations are made at all levels of courts and all administrative tribunals.

Footer

About us

Established in 1995, First Reference is the leading publisher of up to date, practical and authoritative HR compliance and policy databases that are essential to ensure organizations meet their due diligence and duty of care requirements.

First Reference Talks

  • Home
  • About
  • Archives
  • Resources
  • Buy Policies

Main Menu

  • About First Reference
  • Resources
  • Contact us
  • 1 800 750 8175

Stay Connected

  • Facebook
  • LinkedIn
  • Twitter
  • YouTube

We welcome your comments on our blog articles. However, we do not respond to specific legal questions in this space.
We do not provide any form of legal advice or legal opinion. Please consult a lawyer in your jurisdiction or try one of our products.


Copyright © 2009 - 2023 · First Reference Inc. · All Rights Reserved
Legal and Copyright Notices · Publisher's Disclaimer · Privacy Policy · Accessibility Policy