Employment lawyers often tell their employees who have been wrongfully dismissed that they need to look for work because they have a “duty to mitigate.” It is an important concept to understand in employment law because it can have a significant impact on an employee’s case against the employer for wrongful dismissal. There have been and continue to be many Ontario court cases that deal with this issue in employment law.

This blog delves into the topic of mitigation in employment law by looking into the new decision of Ontario’s Court of Appeal of Williamson v. Brandt Tractor Inc. 2026 ONCA 272. Specifically, we look at what mitigation is, the decision of Williamson v. Brandt Tractor Inc. and how does the decision influences how Ontario courts will look at mitigation in wrongful dismissal cases moving forward.

What is Mitigation?

To remind our readers, the duty to mitigate means that upon dismissal an employee has a common law legal duty to take reasonable steps to “mitigate” their damages. In the context of employment law, taking reasonable steps to mitigate means that the employee should look for alternative employment upon dismissal in a reasonable manner.

Here are some quick facts about mitigation that are relevant to the discussion at hand:

1. The onus to prove that the employee has failed in their duty to mitigate rests with the employer.
2. There are only limited circumstances that the employee may be able to argue that they are not subject to a legal duty to mitigate upon dismissal.
3. The employee must make only reasonable efforts to find alternative employment.
4. Alternative employment generally means a job that is like the employee’s job with their former employer including in a similar industry, job description or title and pay.
5. If the employee has undertaken a reasonable job search and has been able to find alternative employment that was similar to their previous employment and this alternative employment was obtained during the notional notice period, the employee would be considered to have mitigated their damages up to the period that the employee found the new job.
6. There is a way to partially mitigate. In situations where an employee has accepted a new job that may be similar in terms of responsibilities or title to their former employment, but the wages or pay is less, the employer may be successful in arguing that the employee should receive the difference between the two salaries in terms of what would constitute pay in lieu of notice.
7. However, the converse is also true, if the employee was reasonable in accepting the lesser paying role, the court may consider the income to be substantially inferior and not constitute “mitigation income” at all. At least, this was the case until Williamson v. Brandt Tractor Inc.

The Ontario Court of Appeal Decision of Williamson v. Brandt Tractor

The Ontario Court of Appeal case of Williamson v. Brandt Tractor Inc. is a wrongful dismissal matter where there was an appeal from the employer who argued that the trial judge had made two errors. The first error was that the employer did have just cause to dismiss the employee. The second error was with respect to mitigation. Namely, that the employee had failed to mitigate, even partially, because the job they found was inferior to their original job with the employer.

The Ontario Court of Appeal did not agree with the appellant employer relating to the first ostensible error by the trial judge. However, while the Ontario Court of Appeal set out that the appellant employer failed to establish that there was comparable employment available to the respondent employee (and it was the burden of the employer to show this), the trial judge did err in failing to deduct mitigation income earned because this mitigation income was from a lower paying job.

Thus, the law relating to mitigation in Ontario, income earned by an employee from a new job after termination, may still be deducted or treated as mitigation income regardless of the fact that the income from the new job is at a substantially lower pay rate or is a lower rank or with lower prestige than the original job with the former employer.

Our Thoughts on How This Decision May Change What Constitutes Mitigation Income

The case of Williamson v. Brandt Tractor Inc. does offer some clarification in Ontario case law related to mitigation in wrongful dismissal matters. Some background in the jurisprudence of this issue may be warranted to allow readers to gain a fuller understanding of how Ontario courts have looked at mitigation income.

In the 2016 Ontario Court of Appeal decision of Brake v. PJ-M2R Restaurant Inc., 2017 ONCA 402 it was the opinion of a judge that in certain circumstances income may not be deducted as mitigation income where the employee was forced to take an inferior position in cases of wrongful dismissal. This case could be considered controversial as it added another layer of complexity around mitigation and there were conflicting decisions from Ontario courts related to this issue. Several cases after the Brake decision followed that reasoning.

However, the Court of Appeal in Williamson v. Brandt Tractor Inc. distinguished the above decision by setting out that the proposition that income from an inferior new job should be carved out of mitigation income came from a concurring opinion in that case and not the majority position.

So now as it sits, while there may have been some lack of clarity about when mitigation income forms a lesser job may be deducted (if at all), the Ontario Court of Appeal in Williamson v. Brandt Tractor Inc. makes it apparent that income, whether or not from a lesser-paying or lower-ranking new job, will be deducted from any notice award in cases of wrongful dismissal.

How Zeilikman Can Help

Employees and employers who have questions about mitigation should reach out to Zeilikman Law and request a confidential consultation with one of our employment lawyers.

For more information about mitigation or related employment law topics, please read our blogs:

• 3 Things to Know about an Employee’s Duty to Mitigate
• Fired or terminated from your job? Why lawyers say that you must look for work!
• So you’ve been terminated, do you have to accept an alternative position if offered?

For specific questions about mitigation related to your own case, you should approach an employment lawyer and request a consultation. Zeilikman Law can be reached via telephone at (905) 417-2227 or online here in order for you to get your employment law questions answered related to the topic of mitigation or other important employment law issues.