This week, we’re going to be looking at the limits of an employee’s duty to mitigate following a constructive dismissal through the 2012 case of Farwell v. Citair Inc.

For a quick refresher, check out our blogs from the archives on constructive dismissal and the duty to mitigate.

Farwell v. Citair Inc. – The Facts of the Case

Mr. Ken Farwell worked for Citair Inc., a manufacturing plant in Hensall Ontario. He started at the plant as a general labourer in 1971 and was promoted five times over the course of 38 years. His final promotion was in 2004 to the position of Vice President of Operations.

In 2009, Mr. Farwell was told that he was being returned to his position of Purchasing Manager, a position he hadn’t held since 1993. Mr. Farwell declined to accept this demotion. Nonetheless, a short time later, Mr. Farwell’s boss announced to the company’s employees that Mr. Wayne Meidinger, an employee Mr. Farwell had previously overseen, would be taking over Mr. Farwell’s VP position the following week. The boss said nothing of Mr. Farwell’s new position.

Mr. Farwell was present at this meeting and felt deeply embarrassed and humiliated by this public announcement that a more junior employee would be taking over his position. Arguing that he had been constructively dismissed, he did not return to work.

Farwell v. Citair Inc. – At Trial

The trial raised four basic issues:

• Had Mr. Farwell been constructively dismissed?
• If so, what was the reasonable period of notice?
• Did he mitigate his damages?
• Was he entitled to damages for mental distress?

In court, Citair Inc. argued that, while Mr. Farwell’s job title had changed, his salary and work conditions were fundamentally the same and that he had therefore not been constructively dismissed. Citair Inc. also argued that, by not taking the position as Purchasing Manager during the notice period, Mr. Farwell had failed to mitigate his damages.

Farwell v. Citair Inc. – The Decision

At trial, the judge found that Mr. Farwell had been constructively dismissed.

The judge agreed with Mr. Farwell that the move from his position as Vice President of Operations to Purchasing Manager involved a substantial change in duties, responsibilities and, importantly, demoted status and prestige in the company.

Given Mr. Farber’s age (58 years), length of employment with Citair Inc. (38 years) and high managerial position, the judge determined 24 months to be an appropriate length of notice.

Furthermore, the judge found that Mr. Farwell had not failed to mitigate his damages by refusing the position of Purchasing Manager during the notice period.

Mr. Farwell found a position as a Purchasing Agent for Citair Inc.’s competitor, Northlander Industries, approximately seven months after his dismissal. The judge determined that Mr. Farwell had made reasonable efforts to find comparable employment in the difficult economy of the time.

The judge found that Mr. Farwell was not obligated to take the position of Purchasing Manager during the period of working notice. Despite a similar salary and working conditions to his previous position, the judge noted that holding this position (which he had held years earlier) would have constituted working “in an atmosphere of hostility, embarrassment or humiliation” since he would be reporting to a previously subordinate employee.

The judge, however, did not find that Mr. Farwell was entitled to damages for mental distress.

Farwell v. Citair Inc. – The Takeaway

According to the Farber case, a demotion, especially one with diminished prestige and status, can constitute constructive dismissal. However, if Citair Inc. had asked Mr. Farwell to return to his VP position for the duration of the notice period, Mr. Farwell would have likely been required to do so.

The Farwell v. Citair Inc. decision suggests that, in cases of constructive dismissal involving a substantial demotion, employees will not have to mitigate damages by working the notice period in the diminished role.

Constructive Dismissal Experts

If you believe you have been constructively dismissed though demotion or other circumstances, contact KCY at LAW’s employment law team for expert representation. Reach us at (905) 639-0999 or contact us online.

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In previous blogs, we talked about constructive and wrongful dismissals. In both instances, terminated employees have what is called a duty to mitigate. But what exactly is this duty and what does it mean for recently-dismissed employees? What is the scope and character of this duty?

What Is The Duty To Mitigate?

The duty to mitigate, in its most basic sense, means that an employee terminated without cause or constructively dismissed must make reasonable efforts to find new employment.

The reason for providing reasonable notice or compensation in lieu thereof is to give employees the time necessary to find a new job. The duty to mitigate is intended to offset former employer’s termination payments under the belief that an employer’s liability is limited to their former employee’s ability to obtain alternate work. However, employees are not expected to take employment that is not comparable to their former position.

In the case of a constructive dismissal, an employee may be required to accept re-employment with their former employer in order to mitigate damages. This is only the case if the terms of re-employment are not fundamentally different from those before the constructive dismissal and only if personal relations in the workplace remain amicable.

Courts will decrease the compensation owed to an employee according to how much they earn from other income sources during the reasonable notice period. Employers are not expected to continue paying their former employees after they have found comparable work, even if they did so before their notice period has passed.

How Determine Damages Awarded To Dismissed Employees

To determine the damages awarded to a dismissed employee, courts will:

• Determine the reasonable notice period according to the employee’s employment contract and the Employment Standards Act (ESA)
• Determine the amount of money they would have earned during the notice period if they had not been fired
• Subtract from this amount their earnings from other income sources during the notice period
• Award the employee the difference between these amounts

Example of Calculating Damages for Dismissed Employees

Let’s say you have been terminated from your job of 5 years where you earned $15 per hour for a 40-hour week. You were dismissed without cause or notice. Under the ESA you are entitled to 5 weeks’ termination pay in lieu of notice. So, after leaving your job your former employer will continue to pay you $600 per week for 5 weeks. Happily, after two weeks you find a new, comparable job that pays $14.50 per hour, also for a 40-hour week. At this point you will stop receiving your full termination pay from your former employer. Instead, for the remaining three weeks of your notice period, you will receive the difference in wages between your old and new jobs ($0.50 per hour). Accordingly, you will receive $20 per week from your former employee for the remaining three weeks of your notice period.

If a court finds that an employee has failed to mitigate, they may not be entitled to any damages or, alternatively, reduced damages based on the period of time during which they failed to mitigate.

Onus On Employers

Fortunately for a recently-dismissed employee, the onus to prove that you have failed to mitigate lies with your former employer. It is up to them to prove that you did not make reasonable efforts to mitigate their damages before a court. In order to do so, an employer must prove that you could have found a comparable position with similar compensation if you had made a reasonable effort to do so.

Document Your Mitigation Efforts

If you want to start a wrongful or constructive dismissal action it is important that you document your mitigation efforts. This means carefully logging your job searches and applications during your reasonable notice period. Failing to take reasonable steps to mitigate may result in your notice period being reduced by the courts.

Employment Law Experts

KCY at LAW’s team of employment law experts can help you navigate the labyrinth of documentation necessary for you to successfully demonstrate the fulfillment of your duty to mitigate and ensure that you receive your full termination pay entitlements. Call KCY at LAW to book your consultation: (905) 639-0999 or contact us online now.

Though sometimes used interchangeably, termination pay and severance pay are not the same thing. While all employees of three months or longer with a company are entitled to termination pay (in place of notice) upon dismissal, not everyone is entitled to severance pay. To clarify the difference between the two, we’ve prepared a handy refresher for you.

What Is Termination Pay?

Termination pay is, quite simply, pay that is given in place of required notice of termination. Normally, an employee who is terminated without cause is entitled to either a statutory period of notice during which they continue working and receiving pay and benefits,  or they are entitled to pay in place of said notice. The amount of notice to which an employee is entitled will likely be set out in their employment contract, otherwise they are entitled to certain minimum standards guaranteed under the Employment Standards Act (ESA).

Required Notice for Termination in the ESA

The length of notice to which employees are entitled depends on how long they have been working with a company. The ESA guarantees the following notice durations or pay in lieu thereof:

Duration of Employment	Notice or Pay-in-lieu Entitlement
3 months to less than a year	1 week
1 – 2 years	2 weeks
3 years	3 weeks
4 years	4 weeks
5 years	5 weeks
6 years	6 weeks
7 years	7 weeks
8 or more years	8 weeks

For example, If you worked for 4 years and 6 months at a company with a weekly pay of $1,000 and were terminated without cause, you would receive either four weeks’ notice or $4,000 (4 x $1,000) upon termination.

What Is Severance Pay?

As mentioned above, not everyone is entitled to severance pay. Severance pay is considered an earned benefit for long-serving employees. Or, as the Ontario Ministry of Labour puts it, severance pay “compensates an employee for loss of seniority and the value of firm-specific skills, and recognizes his or her long services.”

Additionally, to qualify for severance pay you must have worked for a company with a total annual payroll of $2.5 million or more for at least five years.

Severance pay is calculated differently from termination pay. To determine severance pay, you must multiply your regular week’s wages by your number of years of employment with the company.

For example, if you worked 7 years and 6 months (with a qualifying company) at a regular weekly pay of $1,000, your severance pay would be $7,500 ($1000 x 7.5).

Severance and Termination Pay Entitlements Lawyers

Consulting with an experienced employment lawyer is the best way for you to determine your full severance and termination pay entitlements. KCY at LAW have the expertise to ensure you your full entitlements under the ESA and your employment contract. Reach us at (905) 639-0999 or

From financial institutions to factories, video surveillance is common in many workplaces. It is especially prevalent in places where there is inventory or cash. Deterring harassment, theft and vandalism are just some of the reasons an employer may want to monitor their employees. However, the Canadian justice system has not been particularly tolerant toward employers who video monitor their employees without good faith or cause.

The Rules of Video Surveillance in the Workplace

In Canada, employees have a general right to privacy at the workplace, like in any other public space, unless it is explicitly stated otherwise in their employment contract. Accordingly, an employee would not have a reasonable expectation of privacy in an open lobby but would in a locker room.

Well defined workplace policies should be your first defence against employee misconduct. Video surveillance in the workplace should be the option of last resort. Less invasive means of monitoring issues of suspected criminal activity, harassment, or violence should also be pursued before installing cameras. Only once other options for deterring suspected or known inappropriate behaviour have been exhausted should video surveillance be considered.

Is Video Surveillance In A Workplace Legal?

There are many external factors, such as whether a workplace is unionized, that can also contribute to determining if video surveillance in a workplace is legal and legitimate. Based on a multitude of court rulings concerning workplace video surveillance and employee privacy rights, the following conditions should be demonstrated when installing video surveillance systems:

• There must be a legitimate concern that an offence is being committed and that installing cameras will be an effective approach to solving this problem.
• Except for rare circumstances, it is necessary to alert employees to surveillance practices and obtain their consent. Individuals should be able to know who is watching what and to what end.
• Surveillance should monitor a particular area suspected of improper activity and for a determined period of time. However, surveillance must not single out a specific employee. The expanse of surveillance should be limited as much as possible. General surveillance for an indefinite time is usually considered unacceptable.
• Surveillance should be conducted with a specific purpose and only used for said purpose.
• Signs alerting employees and visitors to surveillance cameras should be prominently displayed.
• Adhere to PIPEDA legislation regarding employees’ privacy and access to information.

Video Surveillance In The Workplace – Legal Experts

To avoid infringing upon your employee’s privacy rights, you should talk to an experienced employment lawyer before installing any surveillance measures in the workplace. KCY at LAW can help you to develop fair and legal employee monitoring systems. To find out more give us a call now on (905) 639-0999 or contact us online!

All Hallows’ Eve is upon us and Canadian neighbourhoods are about to be filled with all manner of unusual creatures. But it isn’t just ghouls and demogorgans to watch out for, Halloween is one of the most dangerous days of the year for pedestrians, especially children. If you are planning to celebrate October 31^st trick-or-treating with your kids or attending a costume party with your friends, below are some safety tips to help keep you and your loved ones safe.

Halloween Safety For Pedestrians – Stay Visible

Most motor vehicle-pedestrian collisions occur between dusk and midnight. Be sure that you can see cars and that they can see you. Dark clothing and poor visibility put pedestrians at risk even when they are obeying all traffic laws. A bright costume is ideal but if you or your kids relish the dark and macabre, wear a light or reflective tape to cue drivers to your presence. Additionally, five little witches are more noticeable than one.

Travelling in groups makes you and your children more visible to motorists. Lastly, make sure you are aware of your surroundings and that your mobility isn’t impeded by your outfit. Ensure that you won’t trip over your costume and be aware that masks can substantially limit your field of vision.

Use Sidewalks and Crosswalks

About one third of pedestrian death occur when pedestrians cross the street mid-block. Although your kids might be tempted to zig-zag across the streets from one haunted house to the next, keeping to the sidewalk and using crosswalks can greatly reduce the risk of being hit by a motor vehicle. It is especially risky to cross the road from between parked cars where you and the shorter members of your goblin brood may be hard for drivers to see.

Motorists:Avoid Residential Streets

If at all possible, keep out of neighbourhoods or streets with a high volume of trick-or-treaters. A greater number of pedestrians, and young pedestrians in particular, increases the risk of driving accidents. If you do need to drive through a busy trick-or-treat corridor, be sure to use extra caution. Over 40% of fatal pedestrian-car accidents occur at speeds of 50 km/h and under so leave yourself lots of time on the 31^st to drive extra slow to wherever you are going. Expect the unexpected from little wizards. Excited costumed kids are not necessarily paying attention to traffic and might give you the worst kind of scare by unexpectedly taking to the road.

Never Drink and Drive

Plan a way home before you head to a festive party with friends, family, or coworkers. RIDE programs will be in high effect October 31^st  to ensure everyone can enjoy Halloween safely.

Expert Car Accident Lawyers

If you or a loved one has been injured by a car accident caused by a negligent driver, KCY at LAW has the expertise to get you the compensation you deserve. Call us today at (905) 639-0999 or contact us online to book a consultation.

Earlier this year, the Ontario Superior Court released its decision in Doe 464533 v D 2016 ONSC 541 wherein a man was found to be financially liable for posting a private sex tape of a former girlfriend online.  It was in this case that the Court recognized for the first time the new privacy tort of public disclosure of private facts.  The Court’s decision expands the common law protection of privacy and illustrates how courts can recognize and provide relief to victims of cyberbullying.

Ontario Court Recognizes New Privacy Tort

This new form of a tort arose from the above-noted decision which dealt specifically with revenge porn cyberbullying.  The defendant posted a sexually explicit video that he promised not to disclose of the plaintiff to a pornographic website.  When the plaintiff became aware of the video being posted on the website, the defendant admitted to uploading it before it was removed a few weeks later.  Despite the video eventually being taken off the website, the Court held that there is no way to know how many times it was viewed, copied, or stored before being removed.  Ultimately, the Court awarded the plaintiff $105,500.00 in damages and interest, and granted a permanent injunction disallowing the defendant from contacting the plaintiff or her family members.

Publication of Embarrassing Private Facts – New Privacy Tort

For those who are unfamiliar, the tort of public disclosure of private facts contains the following three elements: someone who gives publicity to a private matter of another is subject to liability to the other for invasion of the other’s privacy, if the matter publicized or the act of the publication would be highly offensive to a reasonable person, and is not of legitimate concern to the public.

The ever-changing and evolving nature of technology into normal, everyday life will likely continue to significantly impact the issue of privacy.  The decision held by the Court in this case however does recognize the new tort of public disclosure of private facts and will hopefully provide a better remedy for those who have been victim to various forms of cyberbullying.

Public Disclosure of Private Facts

If you have been the victim of public disclosure of private facts then contact KCY at LAW to ensure your case is handled effectively. Contact us today by calling (905) 639-0999 or via our online form here.