Notice and severance payments paid by the employer in accordance with the employer’s obligations under the Ontario Employment Standards Act, 20001 (“ESA”) are not subject to the duty to mitigate and, therefore, will not be reduced if the dismissed employee finds new employment during his or her statutory notice period.
A dismissed employee’s entitlement to reasonable notice is, however, inclusive of his or her entitlement to notice and severance payments pursuant to the ESA. In other words, if a dismissed employee is entitled to 10 months reasonable notice and 18 weeks’ notice and severance pursuant to the ESA, the court will award the dismissed employee damages representing 10 months’ notice and, presuming the ESA entitlement has been paid, will reduce the award of damages for the money already paid to the employee during the notice period.
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1.Ontario Employment Standards Act, 2000, SO 2000, c 41.