Easing the Burden of Proof on Failure to Mitigate? : Logan v. Numbers Cabaret Ltd.

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In any wrongful dismissal lawsuit, you are almost certain to find the defence that the worker “failed to mitigate” their losses. In common terms, this little bit of legalese suggests that the worker failed to take reasonable steps to find comparable employment, and as a result, they should be awarded less damages for their termination. While often pled, arguments on the failure to mitigate often fall flat. The reason for this is that it’s been the employer’s responsibility to demonstrate that a worker has failed to mitigate, or in the words of the Supreme Court of Canada: “i) the employer bears the onus of demonstrating both that that an employee has failed to make reasonable efforts to find work and ii) that work could have been found”: see Evans v. Teamsters, Local 31, [2008] 1 S.C.R. 661. This can be extremely difficult to do.

However, a recent BC Supreme Court decision may suggest that the onerous task of proving a mitigation defence is easing. In Logan v. Numbers Cabaret Ltd. (Hamburger Mary’s) two plaintiffs lost their jobs while the restaurant they worked at was being renovated. Ultimately, the workers took the position that they had been terminated, however in the months following their layoffs they never made any other efforts to find alternate employment. While the first part of the Supreme Court test was satisfied, the employer never led any evidence suggesting that had the plaintiffs made efforts to find work, they would have been successful. Rather, the court found that the former employees must nevertheless demonstrate that they had discharged their duty to look for work. Never before had this requirement been imposed on Plaintiffs, and despite the fact that the employer had not fulfilled both requirements in the traditional legal test, the court reduced the plaintiffs’ severance by half.

It will be interesting to see whether the Logan case will be followed in other decisions, or whether it will simply be a one-off deviation from the traditional test. Time will tell, I suppose. For a more complete analysis of this decision, I invite you to read my colleague Samantha Stepney’s case review here.

David M. Brown
Kent Employment Law
236-420-1946
david@kentemploymentlaw.com
LinkedIn: https://ca.linkedin.com/in/davidmjbrown
Twitter: @davidmjbrown

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