Reasonable Mitigation Obligations:

Question: What does the duty to mitigate mean in an Ontario small claims or civil dispute?

Answer: In Ontario, the duty to mitigate requires a harmed person to take reasonable steps to reduce or control losses caused by another party’s breach, so a failure to act reasonably can reduce recoverable damages because some losses are treated as caused by the plaintiff’s inaction rather than the wrong; the Supreme Court described the principle in Southcott Estates Inc. v. Toronto Catholic District School Board, [2012] 2 S.C.R. 675, and courts generally place on the defendant the burden to prove the plaintiff failed to make reasonable efforts and that mitigation was possible, while a plaintiff who takes reasonable mitigation steps may recover reasonable costs actually incurred.   For practical help drafting or responding to mitigation arguments in your claim or counterclaim, Paralegal services at DK Legal Practice can help you organize facts, evidence, and next steps for Ontario matters across the Small Claims track, and you can call (416) 906-6663 to get started.

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The Duty to Mitigate Including the Standard of Efforts to Do So

The law despises waste and the doctrine of mitigation, being the duty to mitigate, is the mechanism that imposes an obligation upon a harmed party to take reasonable steps to minimize or control avoidable losses. This doctrine in law requiring efforts to mitigate applies to all matters of law including tort law, contract law, employment law, construction law, among other legal issues.

The Law

The duty to mitigate was articulated well by the Supreme Court within the case of Southcott Estates Inc. v. Toronto Catholic District School Board, [2012] 2 S.C.R. 675, where it was said that:

Accordingly, the duty to mitigate requires a harmed person to minimize the harm suffered.  Failure to minimize the harm may, and likely will, reduce the sum that the wrongdoer will owe the harmed person in a determination of liability at a court Trial.  As was explained above by the Supreme Court in the Southcott Estates case, where a failure to mitigate occurs, it is the failure of the Plaintiff to act reasonably to minimize the loss that caused a portion of the harm.   The wrongdoer is liable only for the portion of harm caused by the wrongdoer. Examples of mitigation include, among other things, the reasonable efforts of a wrongfully dismissed employee to seek fresh employment or for the victim of an injury to attend rehabilitation rather than to allow injuries to fester while loss of income for time off work accrues needlessly. 

Conclusion

The law required that a Plaintiff (or a Defendant within a counterclaim against the Plaintiff) took reasonable steps to mitigate, meaning reduce, losses.  When a person failed to take reasonable steps to mitigate (reduce losses), the law will disallow claims, or the amounts within claims, that arose because of the failure to mitigate whereas the law views the losses that arise from the failure to mitigate as caused by the inaction of the victim rather than by the action of the wrongdoer.  When a Defendant to a lawsuit seeks to argue failure to mitigate as a defence strategy, the Defendant must include such an allegation with the defence pleading documents and it is the Defendant that must prove that the Plaintiff had a reasonable opportunity to mitigate the losses and failed to do so. However, the Plaintiff is without a requirement to mitigate perfectly and must only take such steps that are reasonable at the time that the loss is occurring rather than as may appear possible at a later date through hindsight.