Must an employee mitigate damages when a fixed term employment contract is terminated early?

Written by litigator and mediator Irvin Schein and originally published at irvinschein.com.

The recent decision of the Ontario Court of Appeal in Howard v. Benson Group Inc. clarifies the current state of the law on the duty to mitigate where a fixed term employment contract is terminated early.

In this case, Mr. Howard was employed at the Defendant’s auto service center as a manager. He had a written employment contract for a five-year term starting in September, 2012.  His employer terminated the contract after almost two years, without cause.

The contract included the following provision concerning the employer’s right to early termination without cause:

“Employment may be terminated at any time by the Employer and any amounts paid to the Employee shall be in accordance with the Employment Standards Act of Ontario.”

The employer took this to mean that it had the right to terminate the contract early at any time, at which point it would be liable to the employee only for statutory benefits.

Mr. Howard’s position was that he was owed the full amount that would have been payable for the balance of the employment contract, as a lump sum.

The matter went to trial. The trial judge concluded that the early termination clause was so ambiguous as to be unenforceable.  He then concluded that the employee was entitled to damages, but the damages were to be calculated on the basis of reasonable notice at common law.

Furthermore, the judge determined that in accordance with usual common law principles, the employee had a duty to mitigate those damages.

The employee appealed to the Court of Appeal both on the question of the applicability of common law reasonable notice in these circumstances, and on the question of his having a duty to mitigate.

The Court of Appeal allowed the appeal. It ruled that as the relationship was governed by a fixed term contract, the common law presumption of the employer having an implied obligation to provide reasonable notice of termination was completely displaced.  The judge’s characterization of the early termination clause in the agreement as ambiguous was not challenged by either party but the Court of Appeal considered that whatever it meant, it did not alter the fact that this was a fixed term contract.  Accordingly, the employer was liable for the immediate payment of everything that would have been paid to the employee over the balance of the term of the contract had it not been terminated.

The Court of Appeal went on to determine that in such circumstances, the employee was under no duty to mitigate. As a fixed term employment contract requires the employer to pay the employee to the end of the term, in effect this means that the parties have contracted out of the common law approach to reasonable notice subject to mitigation.

As a result, even if Mr. Howard had obtained another job the day after his employer terminated the fixed term employment contract, he would have been entitled to payment of the balance under the contract.

This points up the very serious consequences of a fixed term employment contract that does not have a clear and unambiguous provision for early termination, specifying the rights and obligations of the parties in that event. Clearly, a clause simply saying that the employer may terminate early, without specifying those consequences, cannot be relied upon by the employer to escape the obligation to pay the balance due under the contract.