Lynne Aylsworth had worked at the Law Office of Harvey Storm for 15 years as a legal assistant when Storm merged with another real estate law practice ("REL"). He gave Ayslworth approximately four months' working notice of termination. Towards the end of the working notice period, REL offered Aylsworth employment as a clerk and receptionist. The terms of REL's offer were quite similar to her employment with Storm with respect to salary and basic duties. There were differences, however, including that she was required to sign a written agreement with REL; she would no longer entitled to take vacation in the summer months; sick days would be treated as vacation days; there would be an initial probationary period of employment.; and her severance entitlement would be limited to statutory minimums. After making inquiries about the position and unsuccessfully attempting to negotiate for a higher salary, Aylsworth rejected REL's job offer.

On a summary judgment motion brought by Aylsworth, the sole issue before the Motion Judge was mitigation; specifically, whether Aylsworth acted reasonably in declining to accept REL's offer.The Motion Judge found that REL's offer was sufficiently different in a negative way to justify Aylsworth's rejection of that offer, and awarded her $32,500 in damages for wrongful dismissal.

The Ontario Divisional Court subsequently dismissed Storm's appeal of the Motion Judge's decision, finding that the Motion Judge did not err in concluding that Storm did not meet its burden of establishing that Aylsworth had failed to mitigate.

An employer may believe that an employee's rejection of an offer of alternate employment at the same salary and with similar duties constitutes a failure of the common law duty to mitigate. Aylsworth demonstrates, however, that this is not necessarily the case where the terms of the rejected offer differ sufficiently and negatively in other respects.

Note: This a reprint of an article by Rhonda Shirrerr of Rose Fulbright Canada LLP.