In Hill v Canyon Dental Center Ltd., 2025 ABCJ 163 (Higa) a dental office assistant with over 14 years of service was successful in her wrongful dismissal claim, but her damages award was not as she may have hoped because the reasonable notice period was lower than claimed, and she was found to have failed to mitigate part way through the notice period.

This case is important because it illustrates the effect a strong market for comparable jobs can impact both the reasonable notice period and the mitigation of damages analysis.

Facts

The following were some of the pertinent facts summarized by Judge Higa:

• The plaintiff employee worked as a dental office receptionist, at $30/hr, and only one day a week (Saturday). Her job duties were mostly reception and front office
• She was age 47 at the date of dismissal and had worked at that location for over 14 years when her employment was terminated without cause
• She did not have evidence of responding to job postings, and did not keep any sort of journal of her job hunt activity. She did not send many resumes out to potential employers after her dismissal.  She also turned down a job offer after about 8.5 months of unemployment that appeared to be reasonably comparable to the one she lost.
• Canyon Dental produced 120 job postings for the relevant period for jobs of varying degrees of comparability to the plaintiff’s job. Canyon Dental also had evidence that the position was in high demand, especially for someone with the plaintiff’s experience
• The plaintiff sued for reasonable notice (severance) for 16 months, and for punitive damages – the basis of the punitive damages claim was:
  • The plaintiff had been on maternity leave sometime before her dismissal
  • When she returned, her employer required her to sign a new employment contract. That contract contained a clause purporting to limit her severance
  • The employer then tried to rely on that clause to limit her severance, and maintained that defence until shortly before trial when it abandoned it
  • The employer’s explanation for requiring her to sign the contract was that they thought the employee had a break in service and was trying to get all the “legacy” employees – from before the practice changed ownership – on new contracts.

Analysis / Conclusion

Judge Higa first considered what reasonable notice period the plaintiff was entitled to.  He awarded 10 months reasonable notice for wrongful dismissal, highlighting the following element of the test:

[20] […]  Of significance is the last factor identified in Bardal, being the “availability of similar employment, having regard to the experience, training and qualifications of the servant”.

The Court found that the “significant number of equivalent positions that may have been available to her” after termination, justified “a shorter period of notice”.

The Court rejected an employer argument that the plaintiff should necessarily have taken a job offer she received about 8.5 months after termination, noting as follows:

[46] […]  The Court cannot step into her shoes and second guess that decision.  Making a decision where to work and who to work for are important decisions, based on individual and personal preferences and goals, in addition to considering the specifics of work duties, opportunities for advancement and remuneration.  Very often individuals make important life decisions based simply on a feeling.

However, the Court did find the job offer was significant.  He applied it towards reinforcing his finding that there was comparable employment available to her during the notice period:

[47] However, the […] offer assists the Court in determining whether there was comparable and similar employment available to Ms. Hill.

Judge Higa found that since the employee had not expended significant effort to find a comparable job, and given that there were comparable jobs she likely could have secured, she had failed to mitigate her damages.

Judge Higa acknowledged the difficulty in determining the appropriate reduction in severance damages for failure to mitigate.  He decided the severance damages should be reduced from 10 months to 8 months to account for the plaintiff’s failure to mitigate her damages.

The Court went on to consider the punitive damages claim.  The Court noted that abandoning a defence can be the basis of a costs award, but will not normally be the basis for a punitive damages award.  The court also noted that while the employer requiring the plaintiff to sign an employment agreement on return from maternity leave “may have been ill advised”, in the circumstances of this case it did not rise to the level of “highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behavior” required for a punitive damages award.

My Take

There are many cases supporting a reasonable notice period exceeding the 10 months that was awarded here.  However, this case illustrates that assessment of reasonable notice damages awards is always in the discretion of the court.  Judge Higa was explicit that the high “availability of employment” was key here. That fact was established by all the job postings produced by the employer, and was illustrated by the fact that the employee did in fact receive a job offer during the notice period.

I think the most interesting aspect of the decision was how the job offer was treated.  The reasoning indicates a certain degree of deference to an employee’s choices of where they want to work, while at the same time using the job offer as key evidence that there was a robust job market.  This led to the conclusion that had she expended a reasonable effort to find work, she likely would have found it at some point in the reasonable notice period.

I think this case was a win for employers.  Although this particular employer’s establishment of failure to mitigate did not result in a large reduction in damages, the reasoning in this case favors employers in this task generally.

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