Mitigation: Introduction: More Complex than Expected
Mitigation does not instinctively present itself as a significant legal issue. It is well known that the onus of proof in a wrongful dismissal action is firmly placed on the employer and further, that is a double barrelled onus. That often is considered all one needs to know on this subject.
The issues, however, are much more complex. The Mifsud decision of the Ontario Court of Appeal appeared to be dying a well deserved end, when the Supreme Court breathed new life into a comparable issue with the Evans decision. Both of these cases present a potential complete defence and must be taken seriously.
The issue of the entitlement to statutory severance is also an important, undecided issue, particularly when faced with an Evans defence.
The issue of the employer’s right to relocate the location of employment remains a live issue, and also may present as a complete defence.
The question of mitigation expenses remains uncertain with respect to moving and related expenses.
Fixed term contracts and an agreement with a set severance sum have now been seen to exclude a mitigation obligation, absent excepting language. Other jurisdictions have asserted that while the law may not require mitigation in this context, successful mitigation will nonetheless reduce the claim.
The question of mitigation in a stock option claim also remains a formidable defence.
The Ontario Court of Appeal recently, in a concurring decision, put forth the theory that certain lesser incomes need not reduce the main claim. The same case confirmed that the minimum statutory payments required no mitigation offset.
The fundamental question of whose interest is to prevail in this context, that of the defaulting employer or the terminated employee, is also reviewed. The trend today is that it is the employee’s mission which should prevail which has allowed considerable leeway in opening a new business as a mitigation effort.
The question of an overly successful job search remains unsettled, as to whether the damage claim stops with the higher paying position or is assessed based on the full notice period.
These issues and more are reviewed within. The general principles are reviewed here.
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