As noted by Professor Waddams 1, what is “reasonable” to mitigate a loss involves both a question of fact and a legal conclusion:
The plaintiff is barred from recovering in respect of loss that could have been avoided by acting reasonably. What is reasonable has been called a question of fact depending on the particular circumstances of the case. However, as with remoteness, a finding that the plaintiff ought to have mitigated is not a simple question of fact because it involves a legal conclusion. …
Certain cases have stated, however, that a finding of a failure to mitigation is essentially a question of fact, as stated by the Manitoba Court of Appeal in its June 2007 decision in 2438667 Manitoba Ltd v Husky et al:
But the authorities also confirm that whether reasonable steps have been taken to attempt to mitigate loss is a question of fact. This principle has been repeated in any number of appellate decisions: see, for example, Western Canada Directories Ltd. v. Midwest Litho Ltd. (Sask.C.A.), Cohnstaedt v. University of Regina, (C.A.), Mosher v. Epic Energy Inc., BCCA, and Tasse Brothers Ltd. v. Tome and Americo’s Super Markets Ltd. Man C.A..
It is expected that this statement is not correct. The initial finding is indeed one of fact, which when applied to the legal principles becomes a mixed finding of fact and law. This will be an important issue for the test on appeal as seen in Sifton v Wheaton, as a successful appeal on a question of mixed fact and law requires the appellant to show a palpable error and overriding error, a formidable objective. See also Battell v Canem in which Bouck, J. came to the same conclusion on the issue of the finding being one of fact and law. To the same effect is the Ontario Court of Appeal decision in Chandran v National Bank.
This was also the determination of the British Columbia Supreme Court 2 in a judicial review application from a decision of British Columbia Human Rights Tribunal holding that the question as to failure to mitigate is one of mixed fact and law and in this instance making the decision on reviewable on the correctness standard.
In situations involving a review of administrative decisions, the standard of review of a question of mixed fact and law for a discretionary decision will be correctness where there is an “extricable” issue of law.
In cases where the mixed question of law and fact is not “law-intensive”, the reviewing court will allow the Tribunal deference and hence apply the standard of patent unreasonableness. Such was the determination in an issue of failure to mitigate in a review of a Human Rights Tribunal decision in McIntosh v Metro Aluminum Products, a decision of the British Columbia Supreme Court.