Originally appeared in McMillan LLP August 2013 employment and labour relations bulletin, as well as Lexology and Mondaq.

Auhor: Lai-King Hum¹
August 2013

It is the classic Catch-22 situation: you need Canadian experience to get a job in Canada, and you need a job in Canada to get Canadian experience. Whether job-hunting or applying for professional accreditation in Ontario, the “Canadian experience” conundrum gives rise to a seeming paradox.

Employers and regulators have argued that discriminating against those without Canadian experience is not prohibited, and that such experience can be gained through supplementary training. Rather, the requirement is a means of being discriminating in selecting candidates with the best qualifications for the Canadian market, with high standards of competence and performance.

The OHRC disagrees. On July 15, 2013, the Ontario Human Rights Commission (“OHRC”) released its Policy on Removing the “Canadian Experience” Barrier (“Policy”). The Policy outlines the OHRC’s position that requiring Canadian experience is prima facie discrimination under Ontario’s Human Rights Code (“Code”). The Policy has been lauded by some for eliminating in one fell stroke the Gordian-knot of “Canadian experience”, said to be the most common barrier to integration into the Canadian job market for newcomers.

background

High rates of underemployment and unemployment amongst recent immigrants to Canada because of the Canadian experience barrier are cited to justify this Policy. The Policy also points out that to get the requisite Canadian work experience, some newcomers turn to volunteer positions or unpaid internships – situations which are fraught with their own problems.²

Discrimination itself is only prohibited if the discrimination is based on a prohibited ground. Sections 5 and 6 of the Code lists the following specific grounds for employment and vocational associations:

Employment
(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. R.S.O. 1990, c. H.19, s. 5 (1); 1999, c. 6, s. 28 (5); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (5); 2012, c. 7, s. 4 (1).

Harassment in employment
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. R.S.O. 1990, c. H.19, s. 5 (2); 1999, c. 6, s. 28 (6); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (6); 2012, c. 7, s. 4 (2).

Vocational associations
6. Every person has a right to equal treatment with respect to membership in any trade union, trade or occupational association or self-governing profession without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

The OHRC position may be summarized as follows:

• A strict requirement of “Canadian experience” is prima facie discriminatory, and may only be used in rare circumstances; and
• The onus is on employers and regulatory bodies to show that a requirement of prior work experience in Canada is a bona fide requirement

As shown below, the OHRC position steps up developments in caselaw and other decisions by courts, human rights tribunals, labour arbitrators, and regulatory decision makers. In doing so, Ontario has become the first province to explicitly forbid, except in rare circumstances, requiring “Canadian experience” as a condition of hiring or for accreditation into a profession.

The OHRC position is based partly on the Supreme Court of Canada decision in Meiorin³, which set out a three-part test to determine when a job requirement which violates human rights legislation may be justified as a bona fide occupational requirement. A bona fide occupational requirement must have all of the following elements:

• The requirement was adopted for a purpose or goal that is rationally connected to the function being performed;
• It was adopted in good faith, in the belief that it is needed to fulfill the purpose or goal; and
• It is reasonably necessary to accomplish its purpose or goal, because it is impossible to accommodate the claimant without undue hardship.

Meiorin involved a complainant who was required to pass a uniform standardized firefighter test, imposed by the government three years after she was hired. She was unable to pass the fitness part of the test, which required her to run 2.5 kilometres in 11 minutes, and lost her job as a result. The court held that the fitness tests were discriminating and inadequate as a measure of ability, and the standards established did not take into account the differences between the physical abilities between men and women.

The Policy makes clear how the Human Rights Tribunal may be expected to deal with applications alleging discrimination based on a requirement for “Canadian experience”. The Policy is not binding on our courts. However, OHRC policies are nonetheless given judicial deference.

What does this Policy mean for employers and profession regulators? The law has already been developing in this area. However, the Policy creates more public awareness. As a result, there is an increased risk of applications to the Ontario Human Rights Tribunal for human rights violations based on “Canadian experience”, and therefore more vigilance required.

employers

The issue of “Canadian experience”, as opposed to foreign work experience, has already been legally considered in the employment context.

For instance, in Clarke Institute of Psychiatry v. O.N.A.⁴, the labour tribunal found that the Clarke Institute of Psychiatry did not recognize nurses’ years of experience outside of Canada when the experience was not from particular countries. This was used to calculate the salary grid level of the employee from the collective agreement. The tribunal held that the lack of recognition of experience from particular countries, in this case, Africa, amounted to discrimination based on country of origin or race. Of significance is that the Institute did not produce any rational or substantive explanation for devaluing experience from Africa.

Employers should also be cognizant that refusing a candidate with no Canadian experience, but extensive non-Canadian experience, on the basis that they are “over qualified” could also be found to be prohibited discrimination. The Canadian Human Rights Tribunal found in Sangha v. Mackenzie Valley Land & Water Board⁵ that an employer who applies a policy against hiring overqualified candidates is discriminating on prohibited grounds. The Tribunal found that visible minority immigrants are disproportionately excluded from higher rings of the job market, and therefore they apply to jobs where their qualifications exceed the job requirements. An employer who establishes a rule against hiring overqualified candidates, although neutral on its face, has a greater impact on the visible minority immigrant candidates. The Tribunal also noted that native-born candidates who are rejected because of over-qualification can seek other work suited to their resumes, but immigrants do not have this option.⁶

profession regulators

Of more significance is the impact that the Policy may have on the professions and their regulatory bodies. There are over 800,000 members of regulated professions in Ontario, and an increasing number of internationally trained and educated applicants.

Earlier this year, the Office of the Fairness Commissioner (Office), with authority created by legislation to oversee the registration practices of profession regulators, released a report “A Fair Way to Go: Access to Ontario’s Regulated Professions and the Need to Embrace Newcomers in the Global Economy”.⁷ Similar to the Policy, the Fairness Commissioner’s report also cites “Canadian experience” as a significant hurdle for all newcomers seeking registration into a regulated profession.

Since the establishment of the Office in 2007, there have been reductions in Canadian experience requirements in the licensing criteria for various professions.⁸ In 2011, out of 38 professions, 26 required work experience, of which 15 continued to require Canadian experience, including 6 that specifically required Ontario experience. These include architects, dieticians, engineers, foresters, general accountants, land surveyors, midwives, physicians and psychologists.

“Canadian experience” in the profession regulation context has also been considered.

In the case of Bitonti v. College of Physicians & Surgeons of British Columbia⁹, the College of Physicians & Surgeons split applicants for licenses to practise medicine into two categories. The first group, having been educated at medical schools in approved countries, was required to have 12 months of an internship at an approved hospital or two years of a residency program. The complainants belonged to the other group, all of whom were graduates of medical schools outside of selected countries. The latter group was required to have two years of post-graduate study, with one year of an internship in Canada. Those in the second group found it very difficult to obtain one year internships in Canada.

In deciding that the College’s practice was discriminatory, the Tribunal analyzed whether the requirement for Canadian experience had a correlation with a protected characteristic, and whether there was an underlying rationale for the rule. The Tribunal found that there was a lack of effort on the part of the College to consider foreign equivalencies,¹⁰ and that there were immediate assumptions based on the country where the medical training took place. The Tribunal also made several suggestions regarding appropriate assessment of foreign credentials.

Following the decision in Bitoni, the College of Physicians & Surgeons in Alberta was found not to have discriminated against an Israeli trained doctor whose application for specialist medicine certification was denied. He was required to pass a specialist certification process, and he failed the second assessment. His argument that the requirements were impossibly burdensome and virtually unattainable by foreign trained graduates was rejected. The Tribunal, in a decision in line with the reasoning in Bitoni, found that there was insufficient evidence that the speciality assessments were discriminatory. The Tribunal also found that the assessments and the six months of training were reasonable and necessary to protect patient safety.¹¹

The different outcomes in the two decisions are illustrative of the “best practices” espoused by the Policy. A test that focuses on the individual’s actual competencies will not be discriminatory, whereas qualification assessments that are based solely on where an individual obtained their work experience without further individualized considerations will likely be found to violate human rights.

conclusion

Given the OHRC release of the Policy, what should employers or regulators do?

The obvious answer is to consider eliminating “Canadian experience” as a requirement for a job or for accreditation purposes. However, where an employer or regulator considers that Canadian experience is essential to maintaining proper standards of performance, then it must be able to show that this requirement is bona fide and not related to any prohibited grounds of discrimination.

Alternatively, employers and regulators may modify the requirement of “Canadian experience”. One suggestion is rather than requiring Canadian work experience, the requirement could be a demonstrated knowledge of Canadian laws particular to the job or profession, and its industry codes of conduct, as applicable, and norms and standards.

Solutions which go beyond a strict requirement of “Canadian experience” will likely impose administrative burdens upon both employers and regulators, as each individual applicant’s work experiences will have to be assessed for foreign equivalencies and accommodation in the form of any additional training. Such individual as opposed to assessments based solely on a preference for education or experience from a particular country will likely be essential to avoiding successful claims of discrimination. The additional administrative burden related to such individual assessments are unlikely to meet the threshold of “undue hardship”.

Employers and regulators are also well-advised to maintain records of all applications, and the reasons why a particular applicant is rejected and another chosen. As shown by the case of Rafiq v. Scotia Capital¹², an applicant who was denied a sales position claimed discrimination because his resume contained non-Canadian experience and he was of Pakistani ethnic origin. There was no evidence of discrimination. The determining factor was that the applicant did not have the required prior sales experience. Scotia Capital also provided evidence that two other candidates for the same or similar advertisement had both non-Canadian (Pakistani) experience and sales experience, and were considered better candidates for a sales position.

There are difficulties foreseen with adherence to the Policy. For instance, one of the “best practices” suggestions in the Policy is not to “require applicants to disclose their country of origin or the location of their work experience on their job application form”. How are employers, or regulators, expected to assess or verify credentials or employment history, given the Policy recommendation against requiring such details?

As stated above, though judicial deference will be given to the Policy directive from the OHRC, the Policy is not binding on the courts. It remains to be seen what effect the Policy will ultimately have on employers and regulatory bodies who continue to maintain that “Canadian experience” is a bona fide requirement for employment or licensing.

Employers and regulators who use “Canadian experience” as a criteria for selection are in the meantime put on notice to modify their approaches to hiring and selection of job applicants, and their criteria for accreditation, or be prepared to justify it as a bona fide occupational requirement. They are also advised to seek legal advice on this important development.

Footnotes:

1. With the able assistance of Ke-Jia Chong, then an articling student at McMillan LLP. ↑
2. The OHRC conducted an online survey with more than 1000 respondents, including jobseekers, applicants for professional registration, and employers. The conclusion was that many newcomers end up volunteering or taking unpaid internships in order to meet the “Canadian experience” requirement. See also article: Lai-King Hum, “will work for free!”: employers, beware of offers of free work by unpaid interns, first published in McMillan LLP Employment and Labour Relations Group newsletter, and also in Mondaq and Lexology, July 23, 2013.↑
3. British Columbia (Public Service Employee Relations Commission) v. B.C..E.U., 149 D.L.R. (4^th) 261, 37 BCLR (3d) 317, 1999 CarswellBC 1907 (BCCA), aka Meiorin.↑
4. 2001 CarswellOn 2007, [2001] L.V.I.3193-10, 95 L.A.C. (4^th) 154.↑
5. Tribunal: 2006 CarswellNat 2219, 2006 CHRT 9; and Federal: 2007 CarswellNat 2710, 2007 FC 856.↑
6. Sangha (Tribunal), at para 202.↑
7. See http://www.fairnesscommissioner.ca/index_en.php?page=highlights/afairwaytogo. Faced with increasing numbers of applications from internationally trained and educated applicants for registration into the regulated professions, the role of the Office of the Fairness Commissioner was established by the Fair Access to Regulated Professions Act and Compulsory Trades Act, 2006 (FARPA). FARPA mandates transparency, objectivity, impartiality and fairness in the policies and procedures that regulators use to license applicants in their professions. As part of the Fairness Commissioner’s mandate to ensure that the registration practices of Ontario’s profession regulators are transparent, objective, impartial and fair, the Commissioner regularly audits profession regulators.
   ↑
8. The website for the Office of the Fairness Commissioner contains a list of Ontario’s professions and whether Canadian work experience is required: http://www.fairnesscommissioner.ca/index_en.php?page=about/current_projects/canadian_work_experience.↑
9. 1999 CarswellBC 3186.↑
10. Bitoni, at para 177.↑
11. Gersten v. College of Physicians & Surgeons of Alberta, 2004 AHRC 16 (CanLII).↑
12. 2010 HRTO 607.↑

Originally appeared in McMillan LLP employment and labour bulletin, as well as Lexology, Mondaq and Terralex.
Author: Lai-King Hum
May 2012

“Strange all this difference should be ’twixt Tweedledum and Tweedledee.”

Canada and the United States resemble each other closely: to the global family, the two are close cousins, if not siblings, sharing political and economic ties as well as similar laws in many areas. However, quite apart from our distinct spelling traditions, the course of political, social, and economic history in Canada and the U.S. has resulted in employment and labour relations that are rather different. These important differences are relevant to the significant flow of cross-border business, generally from south to north.

Any American company contemplating or carrying on business in Canada should be aware of the following key differences when it comes to the hiring, managing and termination of employees in Canada.

a. regulatory regimes

American legislative jurisdiction over employment and labour is for the most part shared among three levels of government: federal, state and local, with considerable overlap. At first blush, the overlapping jurisdictions seem quite complicated.

By contrast, legislative jurisdiction over employment and labour in Canada is simply divided between the provincial and federal governments, with each distinct in its own sphere. A significant majority of employers fall under provincial jurisdiction, with the federal government having jurisdiction over certain limited specific federal undertakings, including inter-provincial transportation, telecommunications and banking. There is no overlap between the two. Approximately 85-90% of Canadian employees work in provincially-regulated employment.

Employment and labour law at either provincial or federal levels is also governed by the common law in Canada, and, in the case of Québec, which is a civil law jurisdiction, the common law as codified in the Civil Code of Québec.

b. minimum employment standards

Freedom of contract is largely attenuated in employment and labour relations by prescriptive legislation aimed at redressing the imbalance of bargaining power between employers and employees. Both federal and provincial statutes have been enacted that mandate certain minimum standards and entitlements for employees. Enforced by administrative tribunals, every employer must comply with these standards, or face possible penal sanctions for their breach. There is no contracting out of these minimum standards.

Under these statutes, employees are guaranteed certain minimal entitlements, including minimum wages, hours of work, overtime pay, vacations and vacation pay, statutory holidays, pregnancy and parental leave, and significantly, notice of termination of employment, or pay in lieu, and in some cases, additional severance pay. There are also provisions, aimed at protecting jobs, that are triggered in the event of the sale of a business.

Significantly, the American categories of “exempt” and “non exempt” employees are not applicable in Canada. Salaried employees, as opposed to those on wages, are typically exempt from overtime pay in the U.S. There is no such distinction anywhere in Canada. Except for true executive or managerial employees in Canada, all other employees are entitled to overtime pay. Determining whether someone is truly a manager or an executive is based on an analysis of their actual job duties.

c. labour relations

Of the two countries, Canada is by far the more union-friendly. The average total unionization rate between 2006 and 2010 in the U.S. is 13.1%, compared to 31.5% for Canada, more than double for the same period.¹

The highest unionization rate is in the province of Québec. It has 39.7% of the employment workforce unionized, as well as the most restrictive labour relation laws (or the most progressive, depending on your point of view) anywhere in North America.² It also is unique among the larger jurisdictions in not requiring a secret ballot for certification (a secret ballot decreases the chances of unions being successful on applications for certification).

Labour relations legislation in Canada generally reflects a pro union bias. One important instance of this bias is with respect to successor rights. Under U.S. law, an acquiring employer does not necessarily inherit the predecessor collective agreement or its duty to bargain. In Canada, on a sale or transfer of a business, the default position is to assume the union has the right to carry over the collective agreement and the bargaining rights to the acquiring employer.

Further, unlike the limited interpretation of “freedom of association” found in the U.S. Bill of Rights, courts in Canada have interpreted its Charter of Rights and Freedoms to include protection for the right to join a union to bargain collectively, and a duty of employers to bargain in good faith.

d. terminating employees

“Employment at will”? Many Canadian employers are envious of the application of the American doctrine of “at will” employment, whereby American employers can terminate employees at will, subject to the terms of any written agreement, certain exceptions recognized in various states and so long as the termination does not violate anti-discrimination laws. American employers, on the other hand, are sometimes shocked to learn that the same cannot be done anywhere in Canada where, regardless of whether any written agreement exists, a contractual employer/employee relationship is implied by law. Minimum notice periods, or pay in lieu of such notice, are prescribed by statute in every Canadian jurisdiction, and reasonable notice is also implied in common law.

To limit liability, Canadian employers may oblige new hires to agree that on termination, only the minimum entitlements to notice or pay in lieu under employment legislation apply. However, unless agreed to at the time of hiring, or as part of a carefully structured agreement, and subject to the inability to contract out of the statutory minimums, the common law further requires that an employer provide “reasonable notice” of termination of employment. Employees must generally bring an action in court to recover common law damages for failure to provide reasonable notice. Depending on various factors, that notice could go as high as 24 months, and even higher if egregious circumstances exist.

The province of Québec goes one step further in employee protection: no employee can agree in advance to his or her entitlement to reasonable notice of termination of employment under the Civil Code of Québec. As such, the notice or compensatory indemnity in lieu of notice must be determined at the time of termination of employment.

To add to the American shock at Canadian protective legislation, non management employees under federal jurisdiction, as well as non management employees in the province of Québec (after two years’ service), may seek the remedy of reinstatement if no just cause for the termination of their employment is found.

e. restrictive covenants

American law recognizes the doctrine of “inevitable disclosure”, whereby an employer can use trade secret law to enjoin a former employee from working in a job that would inevitably result in the use of trade secrets. Canadian law does not recognize this doctrine.

In addition, post-employment restrictive covenants binding a former employee not to compete or solicit are restrictively interpreted by Canadian courts. They will only be upheld if the restrictive covenant is reasonable in duration and scope, and the covenants represent the minimum protections which are necessary to protect the employer’s legitimate business interests.

The Civil Code of Québec goes further: an employer may not avail himself of a stipulation of non-competition if the employee has been terminated without a serious reason (i.e. for cause) or if he has himself given the employee such a reason for terminating the employment relationship.³

f. employment litigation

Employment litigation counsel in the United States may be surprised to learn that jury trials are rare in Canada; that lawyers’ fees are generally recoverable from the losing party in every action at between about thirty to seventy-five per cent of the prevailing party’s actual legal costs; and the threat of a class action is more limited in Canada than it is in the United States for employment matters. Because of the costs recovery aspect of litigation, plaintiff counsel, unlike those in the United States, tend to be a little more cautious in initiating actions. Defence counsel may also be less inclined to engage in “scorched earth” litigation tactics.

Further, any award of punitive damages in Canada pales in comparison to those awarded to American litigants. Employers not engaged in egregious conduct generally need not worry about an award of substantial punitive damages.

Developing strategies to deal with employment litigation requires taking these differences into account.

g. Québec: a distinct legal system, language and culture

There are unique challenges for Americans who want to do business in Québec. First, there are French language requirements for any company conducting business in that province, all monitored by the Office québécois de la langue française. Employers with more than 100 employees have an obligation to form a francization committee and, where necessary, undergo a “francization program”; there is also a registration obligation for most employers with more than 50 employers and an obligation to transmit an analysis of their linguistic situation to the Office. Second, paramount in the employment and labour context is the right of all workers in Québec to communicate to their employer in French and a prohibition against employers making a language other than French a job requirement, unless the nature of the duties requires that knowledge.

As such, special considerations in Québec require counsel familiar with the unique context in which employment and labour laws operate in the province.

conclusion

Although in many ways similar, there is a considerable difference in focus between the United States and Canada as it pertains to employment and labour relations. In essence, Canadian law presumes the vulnerability of employees, and provides protections and minimum standards with which all employers must comply. Through American eyes, Canada has a strong employee or labour bias that is less evident in the United States. American law stresses instead a higher level of contractual liberty, and fewer prescribed standards.

Americans doing business in Canada require employees. Thus, they need to conduct the hiring, and then managing and sometimes terminating, of these employees. There are also special challenges related to labour relations in Canada. Rather than risk exposure to penal sanctions, workforce disruptions, and/or lawsuits, local employment and labour lawyers should be consulted before embarking on cross-border business with your northern neighbour.

NOTES:

1. According to the Fraser Institute’s “Measuring the Labour Markets in Canada and the United States”, 2011 Edition.↑
2. Ibid. See also “Union Certification: Developing a level playing field for labour relations in Quebec”. Marcel Boyer, Montreal Economic Institute, September 2009.↑
3. Article 2095, Civil Code of Quebec.↑

Originally appeared in Lang Michener LLP InBrief, and Lexology and Martindale.com Legal Library.
Author: Lai-King Hum
Fall 2008

The obligation to mitigate refers to the duty of a person claiming damages to do whatever is reasonable to minimize those damages. This obligation applies to all breach of contract claims, including fixed-term employment contracts. However, as highlighted in the recent case of Orr v. Magna Entertainment Corp., there are exceptions to this general principle. One exception is where the fixed-term contract of employment provides for a severance amount that is immediately payable, or shortly thereafter, upon termination.

Graham J. Orr had worked for the Magna group of companies for 13 years. He had a very senior position and was paid handsomely. In the fall of 2000, Magna’s Frank Stronach offered Orr a job as CFO at Magna Entertainment Corp. (“MEC”).

Orr insisted on and obtained an employment agreement with a generous termination clause. If fired in the first three years of the agreement, MEC was obliged to provide severance pay or notice of 24 months. If fired after three years, severance pay or notice was then reduced to 12 months. Severance pay in either case was payable within 30 days of termination.

Orr started working for MEC in January of 2001, but by mid 2002, Stronach and the CEO of MEC were unhappy with Orr’s performance and decided to replace him as CFO. In March of 2003, Orr was given notice he would be replaced, but no date was given for the effective date of termination.

Orr and Magna executives, including Stronach, discussed the possibility of a comparable position within the Magna group of companies. Ultimately, Orr was told that his last day as CFO would be in July of 2003 but Magna would continue looking for a position for him.

Orr grew frustrated. He felt Magna was playing him. He was worried that if he stayed with MEC until January 2004 (the three year mark), MEC would try to pay him only one year’s severance instead of two. A senior executive assured Orr that Magna had no intent to string him along until after three years were up and then try to pay him only one year’s severance. Stronach also addressed Orr’s concerns and frustrations, and told Orr not to worry. A job was arranged for Orr within the Magna group of companies. Although it was a lesser position, he was promised that Magna was still looking for a comparable position.

Despite these assurances, on January 9, 2004, just nine days after three years were up, Magna gave Orr one year’s working notice of termination from his lesser position. Orr was again told that this did not mean anything, and that Magna was still looking for a comparable position for him.

In June of 2004, however, Orr was finally told not to bother going into work. There was no other position for him at Magna.

Orr sued the Magna companies and Stronach personally, claiming 24 months’ severance pay of $1,650,000 from the March 2003 notice of termination.

Stronach and the Magna companies defended by saying that Orr had taken another job within the Magna group after his termination from MEC, and that since Orr had stayed on at Magna past three years, under the contract, he was only owed 12 months’ severance pay.

In his decision released early this year, Justice Klowak of Ontario’s Superior Court of Justice awarded Orr the full amount claimed plus interest. He found that Orr stayed on with Magna and agreed to forgo demanding his severance only because of the assurances of a comparable position. Orr had not given up his claim to severance pay. Orr had been left “in the twilight zone” of having neither his old position nor a comparable one, and no comparable position was ever offered. Instead, Orr’s worst fears came true; that is, from March 2003 until June 2004, he had been strung along.

Ultimately, Justice Klowak found only the Magna companies liable to pay the severance amount of $1,650,000 to Orr. The claim against Stronach personally was dismissed.

Regarding mitigation, Justice Klowak cited with approval Justice Nordheimer’s decision in Graham v. Marleau, Lemire Securities Ltd., which also dealt with a fixed-term employment contract. Justice Nordheimer summarized the jurisprudence to date, and listed the principles with respect to the obligation to mitigate:

1. The principle of mitigation applies to a claim arising from any breach of contract, whether fixed- term or of indefinite duration.
2. The principle of mitigation also applies where there is an agreed-upon severance provision.
3. Even where there are agreed-upon severance provisions, there are exceptions to the principle of mitigation. In some cases, the contract of employment can be interpreted as having exempted, expressly or by implication, the employee from the duty to mitigate. Examples of such exemptions are:
   1. There is an express waiver of the duty to mitigate.
   2. There is an express obligation to continue the payments under the employment contract.
   3. The employment contract provides that the severance amount is payable immediately at, or very shortly after, the date of termination, implicitly suggesting a waiver of the obligation to mitigate as neither the employer or the employee could know whether mitigation could occur.

Justice Klowak, accordingly, concluded that there was an implied waiver of the duty to mitigate in the case before him. Since the parties had agreed to severance pay being payable within 30 days of termination, well prior to when either Magna or Orr could know whether mitigation could occur, the implication was that there was a waiver of the duty to mitigate.

Orr was therefore entitled to the full amount of his claim against Magna pursuant to the termination provisions in his original fixed-term employment agreement, with no obligation to mitigate.