An Employer’s Legal Burden of Proof Lessened: A Common Sense Approach

When faced with a wrongful dismissal lawsuit from a former employee, one strategy employers use to reduce severance liability is to argue that the worker failed to mitigate her losses (i.e. by getting a new job).

Traditionally, however, Canadian employment law has placed a heavy burden on an employer wanting to prove a failure to mitigate. The employer’s challenge has been to show that the former employee would in fact have found suitable alternate employment had she been diligent in her job search.

A 2016 decision from the BC Supreme Court, however, may be good news for employers wanting to use a mitigation defence to a wrongful dismissal claim. The ruling in Logan v. Numbers Cabaret Ltd. (Hamburger Mary’s) suggests that, in some cases, an employer’s legal onus may be reduced – by virtue of the post-employment behaviour of its former employees.

For a closer look at the Logan case, read Samantha Stepney’s case law update here.


NOT LEGAL ADVICE. Information made available on the Kent Employment Law website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action, based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. One of our lawyers would be pleased to discuss any specific legal concerns you may have.


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