Canada Case Law

Cressey Construction Corporation v. Parolin

Court

British Columbia Court of Appeal

The appellant's unilateral revocation of an established express oral term permitting the respondent to work from home, without reasonable notice, was a breach of contract that constituted constructive dismissal; the trial judge did not err in finding the respondent's decision to pursue business ventures was a reasonable form of mitigation and in awarding 19 months' pay in lieu of notice, and the appeal is dismissed.

Source excerpt

• Constructive dismissal
• Mitigation of damages
• Notice period
• Oral terms of employment
• Work-from-home arrangements
• Punitive damages

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DeCarlo v. 0894546 B.C. Ltd. (Black + Blue)

Court

Supreme Court of British Columbia

Court found employee was coerced into signing an Exit Form and thus constructively dismissed; employer failed to prove just cause; the employment contract did not unambiguously limit common-law notice to statutory minima (ambiguous wording and no fresh consideration for handbook terms); employee reasonably mitigated; COVID-19 and employer's misleading assurances extended reasonable notice. Remedy: 14 months common-law notice, deduction for mitigation, punitive damages $20,000; total award $90,025 plus pre-judgment interest.

Source excerpt

• Wrongful dismissal
• Constructive dismissal
• Reasonable notice
• Employment standards act
• Mitigation of damages
• Punitive damages

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Williamson v. Brandt Tractor Inc.

Court

Court of Appeal for Ontario

Ontario Court of Appeal partially allowed an employment appeal, upheld the finding of no just cause and no failure to mitigate, but reduced damages by $32,881.43.

• Wrongful dismissal
• Just cause
• Mitigation of damages
• Notice period
• Costs
• Wrongful-dismissal

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Element Restorations Ltd. v. Arruda

Court

Supreme Court of British Columbia

The contract contained an implied term that the plaintiff's project manager possessed sufficient skill to estimate costs; the plaintiff breached that term by using improper methodology, failing to review and adjust the budget, and failing to promptly notify the defendants of significant overruns; those breaches justified the defendants' termination and dismissal of the plaintiff's claim.

Source excerpt

• Breach of contract
• Implied terms in estimates
• Estimate accuracy and notification
• Quantum meruit
• Mitigation of damages
• Costs

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Dhunna v. Brown

Court

Supreme Court of British Columbia

Although the defendant engaged in severe delay and failed to take steps promptly to set aside the default judgment, he did not wilfully fail to defend and he demonstrated defences worthy of investigation (including disputed waiver of conditions and mitigation arguments); balancing prejudice and the administration of justice, the interests of justice required setting aside the default judgment and, consequently, the damages order, and permitting the defendant to file a response within 30 days.

Source excerpt

• Setting aside default judgment
• Damages assessment
• Specific performance claim
• Mitigation of damages
• Application timing and delay

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Sidhu v. Gill

Court

Supreme Court of British Columbia

Although defence counsel's mitigation submission lacked evidentiary foundation and was improper, the prejudice was remediable by corrective jury instructions (including a directive to ignore the mitigation submission and a warning against speculation); the defendant retains the burden to prove failure to mitigate and extent of loss reduction, and absent evidence of specific alternate employment the jury should not speculate, so dismissal of the mistrial application was justified.

Source excerpt

• Mitigation of damages
• Mistrial
• Jury instructions
• Browne v. dunn rule
• Adverse inference
• Burden of proof

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Leschuk v. Greenridge Exploration Inc.

Court

Supreme Court of British Columbia

The application for summary trial was dismissed because there were head-on conflicts in the affidavit and oral evidence on central issues (constructive dismissal, acquiescence, mitigation) that could not be resolved without credibility findings; therefore the court could not find the necessary facts and the first precondition for summary trial was not met, notwithstanding that many factors otherwise favoured summary disposition.

Source excerpt

• Wrongful dismissal
• Constructive dismissal
• Mitigation of damages
• Summary trial suitability
• Costs

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Real Organics & Naturals House Ltd. v. Canadian Phytopharmaceuticals Corporation

Court

British Columbia Court of Appeal

The trial judge's factual findings on contract breaches, causation and credibility were supported by the evidence and are not demonstrably erroneous on appeal; however, damages awarded for breach of the duty of honest performance must be set aside because that cause of action was not pleaded and the opposing party had no opportunity to address it.

Source excerpt

• Breach of contract
• Duty of honest performance
• Fraudulent misrepresentation
• Mitigation of damages
• Limitation of liability clause
• Assessment of damages

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Facility Condition Assessment Portfolio Experts Ontario Ltd. v. Bouchard

Court

British Columbia Court of Appeal

The Court upheld the trial judge: the Asset Purchase Agreement, read with the Employment Contract, created a minimum three-year fixed-term employment; under the agreed governing law (Ontario) the employee is entitled to payment for the remainder of the fixed term without deduction for mitigation; the non-compete covenant in the sale context was reasonable and was breached with proven diversion of three clients; damages were properly assessed on available evidence; appeals dismissed.

Source excerpt

• Fixed-term employment
• Wrongful dismissal
• Mitigation of damages
• Asset purchase agreement
• Non-competition covenant enforcement
• Choice of law

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FH Development Group Inc. v. Brooks

Court

Nova Scotia Court of Appeal

Because the Brooks did not accept FH's anticipatory breach, the duty to mitigate did not arise until the actual breach on the closing date; the trial judge's factual findings that FH's conduct destroyed trust and that the Brooks' purchase on the competitive open market was reasonable were supported by evidence and insulated the damages award from reversal.

Source excerpt

• Anticipatory breach
• Mitigation of damages
• Reasonable mitigation
• Repudiation
• Purchase of replacement property

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