Mitigation in wrongful dismissal claims

In a wrongful dismissal case it is up to the defendant to show that there was no mitigation.  See this week’s Court of Appeal decision in Link v. Venture Steel Inc., 2010 ONCA 144:

 

[73]         In concluding that he should not make a deduction from the award of damages for pay in lieu of notice and benefits, the trial judge had regard to the relevant authorities and legal principles.  He pointed out that there was an onus on Venture to establish that Link failed to take reasonable steps to mitigate his damages and that had he done so, he would have been expected to secure a comparable position reasonably adapted to his abilities.  Because Venture did not lead any evidence about the availability of suitable employment, the trial judge concluded that Venture had not met the second prong of the test set out above.