The Sad State Of The Duty To Mitigate

When an employee brings a wrongful dismissal claim, Canadian courts impose a duty on employees to take reasonable steps to find comparable employment – this is called the duty to mitigate. In theory, this duty is meant to incentivize employees to re-join the workforce as soon as possible after dismissal since the consequence for not complying with the duty can reduce common law notice damages. In practice, courts have set a low bar for what constitutes "reasonable" mitigation efforts by employees. The case law suggests that courts are making it easier for employees to meet the duty with little effort or penalty, frustrating employers who are facing increasing notice periods awards from the same courts.