No acceptance for assertion that shock and distress of job loss prevented employee’s job search

Employee was hired by employer insurance brokerage to work as insurance salesperson. President of employer K sent employee offer letter that established her base salary and manner in which she would be paid commission. Offer letter was only document that set out terms of employee’s employment, and employee was only person hired by employer to be subject to compensation method that was set out in letter. Employee continued to work for employer for approximately three years until she was terminated and paid three weeks’ salary and benefits in lieu of notice. Employee brought claims against employer for damages for wrongful dismissal and breach of contract for unpaid commission and related bonuses. Employee brought motion for summary judgment. Motion granted. Employee was entitled to four months’ pay in lieu of reasonable notice, consisting of six months based on employee’s circumstances less two months for her failure to mitigate her damages. Employee was 61 years old when she was dismissed, had worked for employer for approximately 3 years, and was unable to find work until 17 months after she was dismissed. Employee’s assertion that shock and distress of losing her job prevented her from searching for job was not accepted. Employer established that employee had failed to mitigate her damages based on evidence that there were 38 postings for insurance sales positions in employee’s area over four-month period following her dismissal on same website where employee had initially applied for work with employer.

Samuel v. Benson Kearley IFG (2020), 2020 CarswellOnt 2216, 2020 ONSC 1123, R.E. Charney J. (Ont. S.C.J.).

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