View cases - Stewart McKelvey

Page: 202008. Instead, the Bank submits he pursued self-employment outside the banking industrythrough consulting and through the attempted purchase of a tool-making company.[102] Mr. Chandran denies this allegation and testified that he had contacted a head hunter andhad advised him that he was looking for a senior manager position at a bank. He did consultingwork and pursued other opportunities because he had to earn income to support his family whilehe was looking for a senior manager job at a Bank. The evidence was that these positions werenot posted and hard to find. Mr. Chandran submits that it was reasonable for him to attempt toreplace the job he lost and submits that he is legally entitled to do so. He did not know that hewould not be able to replace the job he lost, nor did he intend for that to happen. He argues thatit is unreasonable to expect him to give up his hope of replacing the job he was constructivelydismissed from without being entitled to make reasonable efforts to find a comparablereplacement. He submits that when it became apparent that he would not be able to do so, hethen applied for the lower rated account manager position.2011 ONSC 777 (CanLII)[103] I do not find that the evidence has established the allegation by the Bank that Mr.Chandran was not looking to find a position in banking because he did not apply for the lowerrated position immediately after his termination of employment. Mr. Chandran was in contactwith a headhunter, who would have had information leading to opportunities for the positionsought by Mr. Chandran. The evidence was that senior positions were not posted. It wastherefore reasonable for Mr. Chandran to go through a headhunter. The Bank argues that Mr.Chandran’s failure to apply for a “bank job” until May of 2008 is a failure to mitigate. Heshould have applied much earlier. There is, however, no evidence of any available seniormanager positions that Mr. Chandran could have applied for.[104] The Bank relies on the case of Coutts v. Brian Jessel Autosports Inc., [2005] B.C.J. No.828 case. In Coutts the plaintiff worked for the defendant as a Ferrari salesman. He wasdismissed without cause. The judge found that the plaintiff was primarily interested in pursuingopportunities with a new Ferrari dealership set to open in the near future, that he failed to pursueopportunities at non-Ferrari dealerships where he would have earned less money, and had hepursued these opportunities he would have secured employment within three (3) months of hisdismissal. The British Columbia Court of Appeal found that damages had not been propertymitigated. The court stated at paragraph 25:“Thus, the judge concluded that Mr. Coutts did not have a duty to accept aposition at less remuneration than he earned from his former employment.With respect, the judge was in error in making that finding. The duty ofmitigation required Mr. Coutts to act reasonably and diligently, in his owninterest, in pursuing alternative employment. Personal preferences and careerobjectives are a consideration in deciding whether an employee is entitled toturn down an alternative employment, but they are not decisive. Theemployee must still act reasonably. In my view, Mr. Coutts did not actreasonably in the circumstances. Refusing to follow through with employmentopportunities in the employee's accustomed line of work, in this case with