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.

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