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Court of Appeal rules on evidence of failure to mitigate

gavelOn March 1, 2010, the Ontario Court of Appeal held that an employer, in advancing a defence of failure to mitigate in a wrongful dismissal claim, must lead evidence as to the availability of comparable employment.

It must also prove that reasonable steps to mitigate would have resulted in the plaintiff securing such employment.

The Court of Appeal therefore rejected the argument of failure to mitigate.

What is one’s duty to mitigate?

An acceptable legal definition is a duty to take such steps as a reasonable person in the dismissed employee’s position would take in his or her own interests – to maintain his or her income and his or her position in the industry, trade or profession.

For more, read Link v. Venture Steel Inc., 2010 ONCA 144 (CanLII)

Earl Altman, Garfinkle, Biderman LLP

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Earl Altman

Legal consultant at EA Consulting
Earl Altman was a partner at Garfinkle, Biderman and now heads his own consulting firm. Earl has practiced commercial and employment litigation. Earl’s practice focuses on employment disputes, including acting for employees and employers in wrongful dismissal claims, and in breach of contract and breach of fiduciary duty claims. Read more
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