The assessment of damages is therefore a “balancing process,” as the Federal Court of Appeal stated in Redpath Industries Ltd. v. Cisco (The): “The court must ensure that the victim is compensated for his loss, but at the same time, it must ensure that the perpetrator is not abused.” 6 Mitigation is a concept of contract law which requires the victim of a contractual dispute to minimise the damage resulting from a breach of contract. This means that the victim is required by law to act in a manner that mitigates both the effects of the violation and his or her own personal loss, and even though the victim who suffers personal harm through no fault of his or her own is obliged to take reasonable steps to avoid further losses and minimize the consequences of the harm. “Reasonably avoided” has no specific definition, but generally means what a reasonable person would do in similar circumstances. If a person is required to mitigate the damages, and they do not, the courts will generally reduce their damages by the amount they could have mitigated. The duty to mitigate is a common law principle that requires an employee to minimize loss or damage incurred after termination. This means that an employee must make reasonable efforts to find a new job. Whether that judgment is set aside or not, does it make sense to include clauses like this, especially if you are the party who may be subject to the obligation imposed? If the words simply mean what the common law already provides, why should they be included? And if they mean more than that, are you comfortable with that higher standard, especially given the potential ambiguity of meaning? Common law rules are well understood by the courts and are there for a reason. If you try to rewrite or reproduce them contractually, you risk exposing yourself to potentially lengthy disputes over the interpretation of contracts without making an obvious profit. A plaintiff`s duty to mitigate damages in tort was upheld by Wilson J. in Janiak v. Ippolito, [1985] SCJ No.
5 (QC) at paragraph 33: Employers and courts will require recently dismissed workers to take reasonable steps to obtain comparable employment. Employees should keep records of their job search to prove that they have mitigated their damage. The employee may need to see what jobs were available on job search engines such as LinkedIn or Indeed.com at the time, what jobs they applied for, and whether they were invited for an interview. A detailed job search diary makes it easier for an employee to demonstrate mitigation attempts. The obligation to mitigate damages does not apply to claims for damages arising from indemnification clauses and contractual debts. Other legal provisions apply. Mitigation is only relevant when the damage is significant, i.e. not quantified. The onus is on the employer to prove that the employee failed to mitigate the loss, and the steps taken to mitigate the damage are also usually urgent. More on this below. The measures that a particular claimant should mitigate depend on what actually happened in the case.
These include cases where the loss does not result from the breach or offence: they constitute a guarantee for this. As a result, the judge very quickly rejected the defendants` argument that the common law doctrine of mitigation affected the amount of damages owed. Mitigation in law is the principle that a party who has suffered damages (tort or contract) must take reasonable steps to minimize the amount of damage suffered. As stated by the Federal Court of Appeal of Canada in Redpath Industries Ltd. v. Cisco (The),[1] “it is generally accepted that a party who suffers damage as a result of a breach of contract is required to mitigate that damage, which means that the infringer cannot be held liable for paying avoidable losses that would result in an increase in the amount of damages payable to the injured party.” The burden of proof of the failure to mitigate damages lies with the defendant. The defendant has the burden of proving that the plaintiff did not mitigate the damage and must prove that the plaintiff could have avoided additional costs and damages, such as not receiving medical care or surgery to prevent future injury. The defendant need only prove, by “predominating the evidence”, that he did not reduce the costs or losses that he could reasonably have avoided.