Mitigation — Ontario Employment Law
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About Mitigation
After being terminated from your job in Ontario, you might feel lost and overwhelmed. While you may be entitled to damages for wrongful dismissal, it's crucial to understand a legal concept known as the 'duty to mitigate'. In simple terms, mitigation means you are legally required to take reasonable steps to reduce your financial losses by trying to find a new, comparable job. You cannot simply sit back and wait for a settlement from your former employer; the law expects you to be proactive.
This duty is a central element in wrongful dismissal cases. Your former employer will almost certainly raise the issue, and the burden will be on them to prove that you failed to make reasonable efforts to find work. If they succeed, a court can reduce the amount of damages you receive. What constitutes a 'reasonable effort' is highly specific to your situation. It depends on factors like your age, the type of work you did, your salary, and the job market conditions for your field. For example, a senior executive is not expected to apply for entry-level positions, but they are expected to actively seek out comparable senior roles.
It is essential to distinguish this common law duty from your statutory entitlements. Your minimum entitlements to termination pay and severance pay under Ontario's Employment Standards Act, 2000 (ESA) are not subject to mitigation. You receive this money regardless of whether you find a new job the next day. The duty to mitigate only applies to the additional 'reasonable notice' damages you might be awarded by a court in a wrongful dismissal claim.
Because the success of your mitigation efforts can significantly impact the outcome of a legal claim, documenting your job search is critical. Keeping detailed records can be your best defence against an employer's claim that you didn't try hard enough. Every employment situation is unique, and assessing whether your job search efforts meet the legal standard requires a careful look at the facts, making professional guidance invaluable in these circumstances.
Frequently Asked Questions
What does the 'duty to mitigate' actually mean after I've been fired?
It means you have a legal responsibility to actively look for a new job that is comparable to the one you lost. This is to minimize the financial damages resulting from your termination. Your efforts directly impact how much wrongful dismissal pay (beyond ESA minimums) you may be entitled to.
Do I have to accept any job offer to show I'm mitigating?
No. You are only expected to seek and accept 'comparable employment,' which means a job with similar pay, status, responsibilities, and location. You are not required to take a significant pay cut or a job in a completely different field, especially in the early stages of your search.
How can I prove that I tried to mitigate my damages?
Documentation is key. Keep a detailed log of your job search, including websites you've used, positions you've applied for, networking contacts you've made, interviews you've attended, and any job offers you've received. Save all related emails and application confirmations.
Does mitigation affect the termination pay and severance my employer paid under the ESA?
No, it does not. Your entitlements under the Employment Standards Act, 2000 are a minimum standard and are not reduced by mitigation. The duty to mitigate only applies to common law reasonable notice damages, which are awarded in a wrongful dismissal claim.
What happens if I find a new job that pays less?
If you take a lower-paying job as part of a reasonable mitigation effort, you may still be able to claim the difference in salary from your former employer for the remainder of your notice period. This is a common part of damage calculations in wrongful dismissal cases.
My former employer is accusing me of not looking for work. When should I get a lawyer?
You should consult with an employment lawyer immediately if your former employer alleges you have failed to mitigate. A lawyer can help you assess the strength of your job search evidence and formulate a proper response to protect your claim for damages.
Common Scenarios
- A software developer is terminated and keeps a detailed spreadsheet of the 50 jobs they applied for over three months, including dates, links, and outcomes.
- A senior manager is terminated and refuses to apply for any roles that aren't at the Vice-President level, potentially narrowing their job search too much and risking a failure to mitigate argument.
- After being laid off, a construction worker is offered a much lower-paying job by a different company and turns it down, which is likely considered a reasonable refusal in the context of mitigation.
- An administrative assistant receives a job offer from their former employer to return to a similar role but refuses it without a good reason, which a court could see as a failure to mitigate damages.
- A marketing professional decides to start their own consulting business after being terminated, which can count as mitigation if it's a genuine and reasonable attempt to earn income.
What You Should Know
- Start your job search immediately after termination and keep meticulous records of every application, interview, and networking conversation.
- Focus your search on roles comparable to your previous one in terms of salary, seniority, and duties. You can broaden your search as more time passes.
- Do not automatically ignore or reject a recall or re-employment offer from your former employer; refusing a reasonable offer can be viewed as a failure to mitigate.
- Remember that your statutory pay under the Employment Standards Act, 2000 is safe; mitigation only impacts your potential common law wrongful dismissal damages.
- If you are unsure whether a job offer is 'comparable' or how to respond to an allegation of failure to mitigate, seek advice from an Ontario employment lawyer to protect your rights.
Featured Cases
Warren v. Canaccord Genuity Corp.
2026 ONSC 547 (CanLII) · 2026-01-28Wrongful Dismissal: 21-Month Notice Period and Mitigation Considered
A wrongful dismissal case involving a Managing Director investment banker who was terminated. The court determined a 21-month notice period and awarded bonuses during the notice period. Mitigation and credits were considered, reducing overall damages.
Richard Turcotte v. Grenville Management Inc.
2025 ONSC 3087 (CanLII) · 2025-05-28Constructive Dismissal: Unilateral Layoff and Pandemic Impact
A constructive dismissal case involving a unilateral layoff without contractual authority. The court awarded 16 months' notice, considering the pandemic's impact on the employee's job search. The employee's failure to mitigate damages and the employer's lack of misconduct regarding recall and ESA compliance were also addressed.
William Williamson v. Brandt Tractor Inc.
2025 ONSC 2571 (CanLII) · 2025-05-01Wrongful Dismissal: 18-Year Employee Awarded 17 Months Notice
A wrongful dismissal case involving a long-term employee who was terminated after 18 years of service. The court found the termination unjustified due to insufficient evidence of serious misconduct and set the reasonable notice period at 17 months. The case also addressed the admissibility of hearsay evidence and the duty to mitigate damages. Punitive damages were not awarded due to a breach of the Employment Standards Act, 2000.
Boyle v. Salesforce.com
2025 ONSC 2580 (CanLII) · 2025-04-28Termination of Employment: Notice Period, Mitigation, and ESA Compliance
A wrongful dismissal case involving an employee terminated after eight years of service. The court determined a notice period of eight months, addressed bonuses and benefits during the notice period, and found no evidence of bad faith. The termination clause was found ambiguous and non-compliant with employment standards legislation, leading to the invalidation of the entire termination provision.
Marshall v. Mercantile Exchange Corporation
2024 CanLII 71128 (ON SC) · 2024-07-24Wrongful Dismissal Case Involving Damages and Mitigation
A wrongful dismissal case where the court addressed damages and the employee's duty to mitigate. The case also involved a medical examination and the application of the Courts of Justice Act.
Lewis v. Blue Star Ford Lincoln Sales Ltd.
2021 ONSC 7408 (CanLII) · 2021-11-09Wrongful Dismissal: Mitigation and Notice Periods Under Employment Standards Act
A wrongful dismissal case addressing issues of reasonable notice and the employee's duty to mitigate damages under the Employment Standards Act, 2000. The case likely involves a dispute over the notice period and the employee's mitigation efforts.
Russell v. The Brick Warehouse LP
2021 ONSC 4822 (CanLII) · 2021-07-0936-Year Employee Awarded 24 Months Notice and $25,000 in Damages
A wrongful dismissal case involving a 36-year employee who was terminated without cause. The court determined a reasonable notice period of 24 months and awarded $25,000 in moral damages, while also addressing loss of benefits and mitigation issues.
Chen v. MagIndustries Corp.
2021 ONSC 2377 (CanLII) · 2021-03-25Wrongful Dismissal Case Involving Damages and Mitigation
A wrongful dismissal case where the court addressed the issue of damages and the employee's duty to mitigate. The case also referenced the vesting principle and the Bain v. UBS decision.
Perretta v. Rand A Technology Corporation
2021 ONSC 2111 (CanLII) · 2021-03-22Wrongful Dismissal: Reasonable Notice and Mitigation Debated
A summary judgment motion was made in a wrongful dismissal case where an employee contested the enforceability of a termination clause and sought damages under common law. The court analyzed repudiation of employment contracts, applied Bardal factors to determine reasonable notice, and considered the employee's mitigation efforts.
Sams v. BCG Logistics (2000) Inc.
2021 ONSC 1343 (CanLII) · 2021-02-23Wrongful Dismissal Case with Mitigation and Damages Award
A default judgment was granted in a wrongful dismissal case where the plaintiff was awarded damages for mitigation. The case also involved issues under the Employment Standards Act.
Hucsko v. A.O. Smith Enterprises
2020 ONSC 1346 (CanLII) · 2020-03-03Wrongful Dismissal: Just Cause for Sexual Harassment Dismissal Unjustified
A wrongful dismissal case where an employer's reliance on just cause for dismissing a senior employee was found unjustified. The court determined a 20-month notice period, rejected a mitigation reduction, and denied aggravated or punitive damages due to a reasonable investigation into harassment allegations.
McLean v Dynacast Ltd.
2019 ONSC 7146 (CanLII) · 2019-12-17Constructive Dismissal: Unilateral Changes and Aggravated Damages Awarded
A constructive dismissal case where the plaintiff was reassigned to a lower-status position with significant changes to duties, work environment, and compensation. The court applied the Potter test and awarded 28 months' notice, $25,000 in aggravated damages, and considered income from part-time work for mitigation earnings.
English v. Manulife Financial Corporation
2018 ONSC 5135 (CanLII) · 2018-08-31Resignation and Termination: Can an Employee Rescind a Written Notice of Retirement?
A case involving an employee who submitted a written notice of retirement, which was accepted by the employer. The employee later sought to rescind the resignation, leading to a legal dispute over the binding nature of the resignation and the employee's duty to mitigate damages.
Visaggio v. Joynt-Dent Inc.
2018 ONSC 1911 (CanLII) · 2018-03-2333-Year Dental Hygienist Awarded 24 Months Notice in Wrongful Dismissal Case
A wrongful dismissal case involving a 33-year employee who was terminated without cause. The court awarded 24 months' notice and $110,294 in damages, applying Bardal factors and Bhasin v. Hrynew principles. The employer was found to have breached the duty of good faith by attempting to alter employment terms.
Hagholm v. Coreio Inc.
2017 ONSC 7713 (CanLII) · 2017-12-27Constructive Dismissal: 22-Year Employee Awarded 22 Months Notice
A constructive dismissal case where a plaintiff, after 22 years of working from home three days a week, was required to work full-time in the office. The court found constructive dismissal and determined a 22-month notice period. The case also addressed the plaintiff's duty to mitigate and the appropriateness of summary judgment.
Fulmer v Nordstrong Equipment Limited
2017 ONSC 5529 (CanLII) · 2017-09-25Wrongful Dismissal: Reasonable Notice and Bonus Entitlement
A wrongful dismissal case where an employee with six years of service was terminated without cause. The court applied Bardal factors to determine 10 months' reasonable notice and addressed bonus entitlements, benefits, and mitigation of damages.
Johal v Simmons da Silva LLP
2016 ONSC 7835 (CanLII) · 2016-12-14Wrongful Dismissal: Resignation and Mitigation Analysis
A wrongful dismissal case where the court analyzed whether the plaintiff's resignation was clear and unequivocal, and whether the defendant breached its duty of good faith. The court also considered the plaintiff's mitigation efforts and the appropriate damages for wrongful dismissal.
Stephanie Ozorio v. Canadian Hearing Society
2016 ONSC 5440 (CanLII) · 2016-08-30Senior Manager Wrongful Dismissal: 24 Months' Notice Awarded
A wrongful dismissal case involving a 61-year-old senior manager with 30 years of service who was dismissed without cause. The court applied Bardal factors and the trust and accounting approach to determine the notice period and mitigation damages, ultimately awarding 24 months' salary and benefits. The defendant also provided statutory notice and severance pay under the Employment Standards Act, 2000, but common law obligations exceeded statutory requirements.
Paquette v TeraGo Networks Inc.
2015 ONSC 4189 (CanLII) · 2015-06-29Wrongful Dismissal: 14-Year Employee Awarded 17 Months Notice and Mitigation
A wrongful dismissal case where a senior employee with 14 years of service was dismissed without cause. The court determined a 17-month notice period, applied Bardal factors, and addressed bonus entitlement and mitigation efforts.
Antunes v Limen Structures Ltd.
2015 ONSC 2163 (CanLII) · 2015-06-02Wrongful Dismissal: Senior Employee Entitled to 8 Months' Notice and $500,000 in Damages
A wrongful dismissal case involving a senior employee terminated after five months of service. The court determined the employee was entitled to eight months' pay in lieu of notice under the employment contract. The court also addressed misrepresentations and breaches of good faith by the employer, and the employee's mitigation efforts post-termination.