Mitigation

In Canada, former employees – who are the innocent party – are required to take reasonable steps to mitigate their damages in a wrongful dismissal case.

The onus of proving that the employee has failed to adequately look for work falls on the shoulders of the employer. However, practically speaking it is always best that the employee comply with their legal obligations by taking reasonable efforts when seeking alternative employment. Thus, for example, a person should be able to show documented proof that he or she is making an effort to find new employment, of a similar type. If the industry for reemployment in a similar type of career is challenging, it will be said to be a factor in favour of the employee’s argument that they were reasonable in mitigating their damages by changing careers to find new employment. Where a person obtains a benefit from the duty to mitigate, under the right circumstances that benefit may be deducted from common law damages due in lieu of reasonable notice.

Thus, where another company in a similar position hires a person, but the salary pays less but is not substantially inferior, he or she would only be entitled to damages that are the difference between the two salaries. It will be the responsibility of the employer to show that the employee failed to attempt to mitigate his or her damages. This would be done by the employer showing that the employee did not take reasonable steps to secure a comparable position.