Jottings By An Employer's Lawyer

Sunday, December 04, 2005

Mitigation - A Look at the Defense North of the Border

Michael Fitzgibbon of the always thoughtful, Thoughts from a Management Lawyer, looks at the affirmative defense of mitigation -- a reduction in a plaintiff's damages because of their failure to take appropriate steps to prevent the damage from occurring. In employment cases that usually means the fired employee's back pay award should be reduced because he or she made insufficient efforts to obtain comparable work. In his post, Mitigation in Employment Law, Michael notes a recent case reducing back pay by 20% in part because:
She did not request a letter of reference from her former employers, in circumstances where there is no indication that they would not have willingly done so. Such a request, even if perfunctory, seems, in my view, a reasonable first step for anyone who is seriously entering the job market. ....
Michael points out that mitigation is an affirmative defense, which puts the burden on the employer to show the plaintiff could have done more. In America, it's usually a jury question, although it not clear from the opinion that is true in Canada. Given that you only get to the question of mitigation if there is a finding of liability, which means the jury has already opted for the plaintiff's version not your's, easy to see why it often can be a high hurdle.

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