ABKB Unreported – No Failure to Mitigate

By: Joel Fairbrother

Published: 25 March 2024

Calhoon v J. Quartly Trucking Ltd. (February 14, 2024) Grande Prairie 2204-00155 (ABKB), is an unreported Alberta Court of King’s Bench decision where a labourer with a bit over 6 years of service was awarded 8 months notice.

This case is important in Alberta because general labourers have historically not gotten fantastic severance awards, and because the “mitigation of damages” analysis is more favorable to employees and less favorable to employers than most of the provincial case law.

The lawyer for the successful plaintiff in this decision was Lluc Cerda.

This is an unreported decision.  However, for any legal practitioners or human resources professionals that want a copy of the decision, please reach out to me and I am happy to provide one.


The following were the facts summarized by the ABKB:

  • The plaintiff employee Charles Calhoon worked for the Defendant employer J Quartly Trucking as a shop labourer
  • Calhoon worked for the employer for approximately 6 years and 3 months
  • Calhoon had a grade 10 education and was 62 years old on the date of dismissal
  • The employee was laid off and never recalled
  • The employee was not given notice of termination


The Court found first, that after 180 days spent on lay-off, Mr. Calhoon’s employment was deemed to be terminated.

The Court went on to consider what his reasonable notice (severance) award should be for wrongful dismissal.  The Court awarded 8 months’ notice.

The defendant employer argued failure to mitigate, because:

  • He had experience as a truck driver and heavy equipment operator, but did not search for jobs in those fields
  • The defendant produced a list of 40 positions he could have applied for but did not.

The Court dismissed the argument on failure to mitigate, noting as follows:

As I noted when he was dismissed, Mr. Calhoon was a general labourer. He therefore did not fail to mitigate by not searching for employment as a truck driver or heavy-duty equipment operator, despite the fact that he appears to have had previous experience in both of those fields.

[…] The defendant has produced a list of positions it 1 says Mr. Calhoon could have applied for in his efforts to mitigate which are particularized at paragraph 40 of the plaintiff’s brief. All of those positions, save for perhaps one, were management level or called for certain technical abilities which Mr. Calhoon lacked.

One position required a heavy-equipment operator qualification. It seems that Mr. Calhoon may have once held that qualification, but the evidentiary record is lacking concerning whether he held that qualification at the relevant time. In any event, […] it is not the sort of position that Mr. Calhoon as a labourer at the time of his dismissal by the defendant was required to apply for at law as part of his mitigation efforts. [underline added]

In the result, the Court found that the employer had not established a failure to mitigate, and awarded the plaintiff his full severance.

My Take

The analysis around mitigation of damages is the most significant thing in this case to me.

It is always difficult for an employer to prove mitigation of damages in wrongful dismissal.  The caselaw generally requires an employer to establish that (1) the employee did not reasonably look for work (2) if the employee had reasonably looked for work, he or she likely would have found work.

However, this Calhoon decision sets the mitigation onus standard imposed on employers a bit more rigidly than we usually see in the provincial caselaw. 

There seemed to be evidence that Mr. Calhoon had quite a bit of general industry experience and qualification, and there seemed to be evidence that he ignored whole areas he was qualified to work in and potentially positions he was qualified for.  The Court was not concerned with this, instead focusing fairly rigidly on the fact that at the time of dismissal he was a general labourer, so he did not need to look further than that in his job hunt.

In the range of cases dealing with the standards of mitigation efforts, this one falls on the side favorable to employees.

Bow River Law provides these regular legal blog articles for the purposes of legal news, education and research for the public and the legal profession.  These articles should be considered general information and not legal advice.  If you have a legal problem, you should speak to a lawyer directly.

Bow River Law is a team of knowledgeable, skilled and experienced lawyers handling employment law, human rights (discrimination) and labour law matters.  Bow River Law is based in Calgary but we are Alberta’s Workforce Lawyers.