FAQ's Cases - Stewart McKelvey

Page: 25• Thus, where an agreement provides for a stipulated sum upon terminationwithout cause and is silent as to the obligation to mitigate, the employeewill not be required to mitigate.• Moreover, a broad release in an employment agreement, as here,demonstrates an intention to avoid resort to the courts, confirms a desirefor finality, and bolsters a finding that the parties intended that mitigation2012 ONCA 425 (CanLII)would not be required unless the agreement expressly stipulates to thecontrary.[62] I find the decisions of the appellate courts referred to in these reasons tobe persuasive and I adopt their reasoning. From a practical standpoint, it isworth repeating that if parties who enter into an employment agreementspecifying a fixed amount of damages intend for mitigation to apply upontermination without cause, they must express such an intention in clear andspecific language in the contract.E. DISPOSITION[63] I would allow the appeal and set aside the decision of the applicationjudge. A declaration will issue that the appellant is entitled to the amount ofsalary in lieu of notice specified in the Employment Agreement notwithstandingany salary earned from his new employer.