On its face, the Ontario Superior Court of Justice’s decision in Boyle v. Salesforce.com[1] is unremarkable. A 49 year-old senior-level technical employee with eight years of service sues for wrongful dismissal and is awarded 11 months’ notice. However, a disclosure issue leads to an interesting ruling on the employee’s mitigation efforts that employers should take note of.
During the course of the litigation, the employee refused to produce his Notice of Assessment for the mitigation period. As a result, the employer argued that the judge should draw an adverse inference about the employee’s true income during the notice period due to the employee’s failure to produce his Notice of Assessment and his failure to apply for employment insurance benefits. While the employee did ultimately produce the Notice of Assessment two days before the summary judgment motion was to be argued, it was too little, too late.
In ruling against the employee, the judge stated as follows:
[47] In my view, there can be no acceptable reason for such a refusal. Obviously, Mr. Boyle’s income during the mitigation period is a significant issue in this dispute. Salesforce is entitled to proper evidence of what that income was. That evidence is neatly provided in a notice of assessment. That is the document that provides the objective answer to the question. There is simply no reason for refusing to produce it.
[48] I agree with Salesforce that in the circumstances, an adverse inference should be drawn that the document would not support Mr. Boyle’s income figures. Salesforce asks for the equivalent of three months’ notice to be deducted for this failure. I find that to be a reasonable position and I grant that request.[2]
As a result, the employee received only eight months’ notice.
Takeaways for employers
In wrongful dismissal cases, employers will typically challenge an employee’s mitigation efforts. In so doing, the “…employer must demonstrate that (1) the employee failed to take reasonable steps to mitigate damages, and (2) if reasonable steps had been taken, the employee would have been expected to secure a comparable position reasonably adapted to their abilities.”[3] Employers will typically work to meet this burden by introducing evidence of available job postings.
This case provides employers with another avenue of defence by challenging the sufficiency of an employee’s productions. Where an employee fails to produce their notice of assessment for the relevant mitigation period without any reasonable explanation, there may be a basis for an employer to argue for an adverse inference that would result in a reduction in an employee’s notice period.
For more information on this topic, please reach out to the authors, Andy Pushalik and Simmy Sahdra.
[1] 2025 ONSC 2580.
[2] Ibid. paras. 47-48.
[3] Ibid., para. 39.
