May 4, 2017

By Brian Babcock

Mitigation is a principle of the law of damages which limits the recovery by a Plaintiff. The core principle is that a Plaintiff cannot recover losses that can be avoided by taking reasonable steps. This levels the playing field out of a desire for fairness to defendants. A Plaintiff should be put back in the position they would be in but for the Defendant’s wrong, but not in a better position.

This simple concept gives rise however to a lot of controversy. After all “reasonable steps” does not require perfection. Nor does it require that a Plaintiff take extraordinary risks for the defendant’s benefit. As with many aspects of litigation, by the time a case gets to trial, the parties likely will have very different ideas about what was “reasonable” in hindsight.

Since this principle operates to benefit the Defendant, it is up to the Defendant to prove a failure to mitigate. Because the Plaintiff starts out with all the information, this is easier said than done. I often say that “a failure to mitigate is often pled but seldom proven.”

Mitigation issues may arise in any sort of civil lawsuit, but are particularly common and difficult in cases involving wrongful dismissal (the obligation to seek alternative employment); personal injuries (the obligation to obtain treatment); and real estate transactions gone wrong (the obligation to purchase an alternate property rather than seek specific performance).

The variety of situations leads to a wide range of different disputes which make general statements about the extent of the duty to mitigate difficult. Fortunately, Lee Stuesser, founding Dean of the Bora Laskin Faculty of Law, loaned me the following “simple rules” of mitigation to use in teaching my course on Remedies:

  1. A Plaintiff cannot recover for those losses which could reasonably be avoided.
  2. To the extent that a Plaintiff does successfully minimize losses, the wrongdoer’s exposure to damages is reduced accordingly.
  3. All expenses incurred by the Plaintiff in seeking to avoid or diminish loss are chargeable to the wrongdoer- whether or not the efforts are successful.
  4. When is the time to mitigate? The date of reasonable discovery.

If you are the potential Plaintiff, seeking early legal advice as to how these “simple rules” apply to your situation may help you avoid a nasty surprise at trial.