In Boyle v Salesforce.com, 2025 ONSC 2580, a 49-year-old senior technical employee with 8 years of service sued for wrongful dismissal. The Ontario Superior Court struck down the contractual termination clause and assessed common law reasonable notice at 11 months, but a key issue became the employee’s duty to mitigate his damages. The Court scrutinized the employee’s post-termination job search efforts and his cooperation in disclosing income, which ultimately affected the damages awarded. Below is a summary of the Court’s findings on mitigation, how those findings impacted the notice award, and the legal standards applied.
Employee’s Mitigation Efforts: Court’s Findings
- Job Search Activity: After his termination, Boyle’s job search was minimal. In the first three months, he applied to roughly one job every five days on average. He did not undertake significant “upskilling” or training related to his field during that time. After those initial months, Boyle stopped applying for jobs altogether and instead pursued professional certifications that were unrelated to his area of expertise.
- Reasonableness of Efforts: Despite these limited efforts, the Court found that Boyle had not breached his duty to mitigate. The Court concluded that this level of job search, though modest, was “reasonable” under the circumstances. In other words, the Court was not prepared to say Boyle failed to mitigate simply because he applied to relatively few jobs and then shifted focus to unrelated certifications. A critical factor was the employer’s inability to prove that Boyle’s efforts were unreasonable or that better opportunities were truly available and attainable. The Court noted that employers carry a heavy burden to show an employee’s mitigation was inadequate, and in this case Salesforce did not identify specific comparable positions that Boyle could have obtained with more diligent searching. Thus, no reduction was initially made to the 11-month notice period on the basis of Boyle’s job-search efforts alone.
- Mitigation Transparency: However, a separate aspect of Boyle’s mitigation conduct drew the Court’s disapproval. During litigation, Boyle refused to produce his Notice of Assessment (the Canada Revenue Agency tax summary) for the post-termination period. This document would show his actual income earned during the months following dismissal (if any). Boyle also did not apply for employment insurance benefits after losing his job. The employer argued that his reluctance to provide the Notice of Assessment, combined with not seeking EI, raised suspicions about whether Boyle had undisclosed income during the notice period. In essence, Salesforce questioned the sincerity of his mitigation efforts and asked the Court to draw an adverse inference from Boyle’s lack of transparency.
Effect of Mitigation Efforts on Damages Awarded
The Court’s handling of mitigation directly impacted the length of notice (and thus the damages) that Boyle ultimately received:
- Initial Notice Determination: Based on the Bardal factors (age, length of service, position, and job market conditions), the Court initially decided that 11 months was the appropriate reasonable notice period for Boyle. This was calculated after invalidating the termination clause, meaning Boyle was entitled to common law notice. At first, the Court did not reduce this 11-month period for the limited job-search efforts, since those efforts were deemed acceptable (the employer failed to prove they were insufficient).
- Adverse Inference for Withheld Income Information: Boyle’s refusal to disclose his Notice of Assessment during discovery had significant consequences. The Court found “no acceptable reason” for Boyle’s failure to produce this key document, noting that a tax Notice of Assessment is the best objective evidence of any income earned during the mitigation period. Because Boyle only turned over the document at the last minute (two days before the hearing) and offered no justification for the earlier refusal, the Court agreed with the employer that an adverse inference should be drawn. In the judge’s words, it was reasonable to infer that Boyle withheld the Notice of Assessment because it “would not support [his] income figures” for the post-termination period. In other words, the Court suspected that Boyle may have earned more income (or mitigated his loss more) than he had acknowledged, which would reduce the damages he was entitled to.
- Reduction of Notice Period: As a result of this adverse inference, the Court penalized Boyle by reducing the notice period by three months. Salesforce requested a three-month reduction to reflect the potential undisclosed mitigation, and the Court found this “to be a reasonable position” and granted that request. Thus, the originally assessed 11 months’ notice was cut down to 8 months. In practical terms, Boyle’s damages award was based on 8 months’ pay in lieu of notice instead of 11, entirely due to the mitigation evidence issue. The Court’s message was clear: an employee who fails to cooperate in providing relevant financial information risks a deduction in their wrongful dismissal damages. Indeed, after drawing the adverse inference about Boyle’s income, the judge stated there was “simply no reason” for refusing to produce the Notice of Assessment and imposed the three-month reduction accordingly.
Legal Standards Applied to Mitigation of Damages
The decision in Boyle highlights the legal standards and principles governing an employee’s duty to mitigate in wrongful dismissal cases:
- Duty to Mitigate – General Rule: When an employee is dismissed, Canadian law requires the employee to take reasonable steps to find comparable new employment to mitigate (limit) their losses. Wrongful dismissal damages (i.e. pay in lieu of notice) are intended to compensate the employee for the period of unemployment that they could not reasonably avoid through diligent job searching. The goal is not to punish the employer, but to make the employee whole for lost earnings during the notice period, minus any losses the employee could have mitigated by finding a new job.
- Employee Efforts and Consequences: If an employee unreasonably fails to pursue new employment, the Court may reduce the damages accordingly. For example, an employee who makes no effort to job hunt, or unreasonably restricts their search (e.g. only pursuing roles far outside their skill set or at much higher pay than their old job), risks a reduction or even denial of some wrongful dismissal damages. Conversely, if the employee does secure new employment during the notice period, any income earned from that new job is deducted from the damages (to prevent double recovery). In Boyle, these principles meant that Boyle’s limited job applications could have justified a cut in his damages if the employer proved those efforts fell short and that other jobs were realistically attainable. However, as noted, the Court found his efforts adequate in the absence of concrete evidence to the contrary.
- Onus on the Employer: A crucial legal standard reiterated by the Court is that the employer bears the onus of proving a failure to mitigate. It is not up to the employee to prove they tried hard enough; rather, the employer must demonstrate two things: (1) that the employee did not make reasonable efforts to find comparable employment, and (2) that if the employee had done so, he or she likely would have found a comparable job within the relevant period. This two-part test sets a high evidentiary bar for employers. In practice, courts often require employers to produce evidence of actual job openings or hiring opportunities that the plaintiff passed over. In Boyle, despite the meager job search, Salesforce was unable to point to specific available jobs that Boyle could have obtained with reasonable effort, so the Court did not fault him on this front. This reflects a broader trend in wrongful dismissal cases: courts have been reluctant to punish employees for subpar job searches unless the employer can clearly show a viable job was missed.
- Mitigation and Evidence – Adverse Inference: The Boyle case also underscores the importance of transparency and cooperation with respect to mitigation evidence. While the employer carries the burden of proof, employees are expected to provide honest disclosure of their post-termination earnings and job search activities. If an employee withholds key evidence (such as refusing to produce a tax Notice of Assessment or other proof of income without a valid excuse), the Court may invoke the principle of adverse inference. In Boyle’s situation, his unexplained refusal to produce his income tax assessment led the judge to infer that full disclosure would have undermined his claim (suggesting he had mitigated some of his loss). The result was a direct reduction in the notice period. This sets a precedent that employees who do not cooperate with reasonable requests for mitigation-related information risk having their damages reduced. Employers, on the other hand, are encouraged to request documentation of an employee’s mitigation efforts (e.g. job application records, earnings statements) and, if met with refusal, to argue for consequences as Salesforce did. The Court in Boyle found that drawing an adverse inference and cutting damages was a fair outcome when an employee fails to provide “the objective answer” to the mitigation question that a Notice of Assessment would supply.
In summary, Boyle illustrates how an employee’s duty to mitigate can materially affect wrongful dismissal damages. The Court confirmed that even minimal job search efforts may satisfy the mitigation obligation absent clear proof of available jobs, but it also showed that a lack of candor in reporting income can backfire. Boyle’s award was trimmed from 11 months to 8 months’ notice largely because he hindered the fact-finding on mitigation. The case reaffirms that employees must attempt to mitigate their losses and be forthright about their post-termination earnings, while employers bear the burden of proving a failure to mitigate and should diligently gather evidence on job availability and the employee’s conduct. All relevant mitigation factors – the reasonableness of the job search and the completeness of the employee’s disclosure – will be considered by the Court in arriving at a just damages award.
*Always seek legal advice. The above is for information purposes only.
Stephen Dugandzic received his Juris Doctor degree from the University of Alberta in 2013 and is Calgary-based. He previously practised with Bennett Jones LLP and Taylor Janis LLP before founding YYC Employment Law Group in 2018 and Evolution Legal in 2026.