Mitigation: Test Questioned: Assiduous

As noted from the above, the test for mitigation is reasonableness, viewed objectively and not perfection. The descriptive narrative on the onus obligation were “a heavy onus”, “by no means a light one” as it is the party in default who seeks the innocent to remedy its default.

So where did the “assiduous” search for employment come from ? Assiduous, in this writer’s view, means something more dramatic than reasonable, almost devout, well perhaps not in a religious sense, but arduous, painstaking.

Many jurists may agree with this distinction and have confirmed that the test is a reasonable and not assiduous search.

Justice Low of the Ontario Superior Court in January of 2008 stated in Gingerich v Kobe that the plaintiff’s job search was certainly not assiduous, but there was a finding that the mitigation was nonetheless sufficient:

[21]      The defendant has alleged failure to mitigate and has the onus to show that there has been failure to mitigate. While the evidence before me is consistent with a less than assiduous attempt on the part of the plaintiff to find alternative employment, it does not demonstrate a failure to mitigate in the larger sense. 

Ellen Mole’s textbook describes the obligation as reasonable and efforts less than assiduous will do just fine, as cited in Moore v Samuel. Many cases have cited the same passage as the correct test, as in Murphy v Optipress, a decision of the Nova Scotia Supreme Court.

The decision in Pauloski v Nascor directly debated this standard, one which was judged by reasonableness as opposed to whatever noun would apply to assiduous by the Alberta Queen’s Bench:

[93]            Concerning Pauloski’s efforts in general to seek alternate employment from June 16 to August 31, 1998, I am satisfied that they were sufficient, although perhaps not as assiduous as they might have been. In so finding, I consider E.E. Mole, Butterworths’ Wrongful Dismissal Practice Manual, looseleaf (Markham, Ont.: Butterworths, 1984) at §10.9:

Hence the question arises, where did the concept come from that the departed employee has an obligation which is a “constant and assiduous application for alternative employment, an exploration of what is available through all means”?

This was the standard stated to be the road to freedom in Smith v Aker Kvaerner, a decision of the BC Supreme Court in 2005 of Burnyeat, J. The authour cites the 1989 decision in Forshaw of the BC Court of Appeal as authority for this proposition, which, of course, says nothing even close to this.

The second case cited for this proposition is the unreported decision in Leawood v Thunderbird Home Centres. The passage in Smith v Aker speaks of a reasonable steps and an assiduous search contemporaneously, which is rather odd as these words while do have different meanings.

[31]   In seeking and accepting alternative employment, the plaintiff has a duty to act reasonably and to take such steps as a reasonable person in the plaintiff’s position would take in his own interest to maintain his income and his position in his industry, trade or profession.  The duty involves a constant and assiduous application for alternative employment, an exploration of what is available through all means: Forshaw v. Aluminex Extrusions Ltd. 1989 CanLII 234 (BC CA), (1989) 39 B.C.L.R. (2d) 140 (B.C.C.A.) and Leawood v. Thunderbird Home Centres (unreported) April 3, 1995 decision of Koenigsberg J. (Supreme Court of British Columbia action no. C941213 – Vancouver Registry).

Justice Burnyeat had earlier decided the case of Woolard v Unum in 2002 and used the same words, although on that occasion the reference to the BC Court of Appeal decision in Forshaw was rightly missing as authority for this proposition.

Many subsequent cases have endorsed this incorrect view of the law, including the Yukon Court of Appeal in Evans v Teamsters. The Court of Appeal in this case in fact added underlining under the word “all” in the concluding words “all means”, apparently endorsing the added emphasis.

This, of course, is not the law as noted by the Supreme Court of Canada in Asamera by Estey, J:¹ emphasis added ²

Assuming for the moment that the breach of contract occurred on December 31, 1960, and that the appellant’s right to damages came into being at that time; and assuming that it should then have acted to forestall the accumulation of avoidable losses, what action did the law then require of the appellant by way of mitigation of damages? A plaintiff need not take all possible steps to reduce his loss, and accordingly, it is necessary to examine some of the special circumstances here present.

Lewis v Lehigh Northwest, a January of 2008 decision of the B.C. Supreme Court quoted the passage from Smith v Aker and then added in the following paragraph a seemingly contradictory standard, namely, that it was the plaintiff’s duty was to act reasonably.

While all this may be confusing, this writer’s view is that the standard is reasonable, not assiduous, as referenced above. Users of the British Columbia courts will be aware of the need to be well armed.

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