What is the test for common law damages in lieu of notice in a constructive dismissal action?

Notwithstanding the finding that the plaintiff was entitled to common law damages in lieu of notice, the calculation of these damages is liable to adjustment on account of a finding that the plaintiff failed to mitigate his damages. In appropriate circumstances, an employee can be required to return to his or her workplace when recalled, even after a constructive dismissal. The key consideration is whether the employee may be exposed to hostility, embarrassment or humiliation upon returning to the workplace, thereby excusing him from the obligation to mitigate the damages he is or will sustain by returning to his former position. The evidence here is that the plaintiff was recalled to work on June 24, 2013. The plaintiff declined to accept this recall, which he was entitled to do, but there is nothing in the evidence that suggests he would have faced embarrassment, hostility or humiliation if he had elected to return to his former workplace to resume his former duties on the same terms as before. Accordingly, my view is that any entitlement to damages at common law ought to terminate with the recall notice, capping the time period at five months or 21.65 weeks (see Evans v. Teamsters, Local 31, (2008), 65 C.C.E.L. 93d) 1 (S.C.C.)