November 12, 2013

Is Declining to Return to Work after Constructive Dismissal a Breach of One’s Duty to Mitigate?

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In Chevalier v. Active Tire & Auto Centre Inc., 2012 ONSC 4309, aff’d 2013 ONCA 548, the parties agreed that Mr. Chevalier was constructively dismissed. The issue at dispute was whether the Plaintiff failed to mitigate his damages.

Mr. Chevalier was 55 years old at the time of his dismissal and had been employed with Active Tire & Auto Centre Inc. (“Active Tire”) and a predecessor employer for approximately 33 years. He had been a manager for the most recent 18 years of service. Mr. Chevalier was laid off for economic reasons that were conceded by Active Tire to be unlawful for unspecified reasons, but was paid his salary for his first month of unemployment. He commenced legal action against Active Tire two weeks after his dismissal, claiming wrongful dismissal.

A few days after commencing the legal action and upon receipt of legal advice, Active Tire requested that Mr. Chevalier return to work. Active Tire apologized for the layoff and explained that it had acted under its mistaken belief that it was legally able to do so. Mr. Chevalier refused the offer to return to work.

The Court determined that the appropriate notice period would have been 24 months, given Mr. Chevalier’s age, management position, and long history with Active Tire, but that Active Tire had met the required onus of establishing that a reasonable person would have accepted the opportunity to return to work. The Court found that accepting that work opportunity would not have obliged Mr. Chevalier to work in a hostile, embarrassing or humiliating environment, which was the critical element for determining reasonableness in such cases, as set out in Evans v. Teamsters Local Union No. 31, [2008] 1 S.C.R. 661. No damages were awarded.

On appeal, one of Mr. Chevalier’s arguments was that the trial judge erred when he concluded that there was no acrimony or animosity between the parties as Mr. Chevalier had pursued legal action against Active Tire. The Court of Appeal rejected this argument and upheld the Ontario Supreme Court decision.

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