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Duty to Mitigate: An Employee Obligation
After a without-cause termination in Ontario, you are entitled to reasonable notice or pay in lieu. But that entitlement comes with a condition: you are expected to take reasonable steps to find new comparable employment. This is called the duty to mitigate. Understanding exactly what this requires and equally what it does not require is important because failing to mitigate can reduce the damages you are entitled to recover.
The duty to mitigate is assessed from your perspective, not your former employer's. Courts ask whether a reasonable person in your position, with your skills, experience, and circumstances, would have made the same job search efforts. The standard is reasonableness, not perfection.
Were you terminated without cause and concerned about whether your job search efforts are sufficient?
Mitigation disputes arise more often than most employees expect. Get advice on what is required in your specific situation and whether your severance offer reflects your full entitlement after accounting for mitigation.
Call: 1-800-771-7882 Speak With an Employment LawyerWhat mitigation requires
What mitigation does not require
How a failure to mitigate affects your damages
Where a court finds you failed to make reasonable mitigation efforts, it does not eliminate your severance entitlement. Instead, it assesses what you would likely have earned had you made reasonable efforts and reduces your damages by that amount. For example, if the court finds you were entitled to 12 months of notice but would have found comparable employment after 6 months with reasonable efforts, your damages may be reduced to 6 months. The reduction reflects what a reasonable job search would have produced, not a penalty imposed on you.
The onus of proving that you failed to mitigate rests with your former employer. They must demonstrate both that you did not make reasonable efforts and that comparable employment was realistically available. Without both elements, a mitigation reduction will not be applied.
What to document during your job search
When personal circumstances affect the mitigation standard
Health conditions or disability
Where illness or a disability limits your ability to job search or work, the standard of reasonable mitigation is assessed in light of those limitations. You are not required to take steps that would harm your health or that are not feasible given your medical circumstances. Medical documentation supporting your limitations is important.
Specialized skills or senior roles
Where your skills are highly specialized or your role was senior, the pool of comparable positions may be limited and the time required to find suitable employment may be longer. Courts recognize that not every dismissal allows for a quick comparable job search, and the notice period awarded reflects this reality.
Starting a business
Choosing to start a business after termination rather than searching for comparable employment does not automatically constitute a failure to mitigate. Courts assess whether the business venture was pursued seriously, in a field the employee knows, and with genuine commercial effort. A speculative venture in an unrelated field with no planning carries more risk. Serious entrepreneurial efforts in a familiar industry are generally treated more favorably.
Geographic and family constraints
Where you have genuine geographic or family constraints that limit your ability to accept certain positions, these are relevant to the reasonableness assessment. You are not required to relocate or accept positions that would require fundamentally different working arrangements from those you held.
Were you terminated without cause and unsure whether your job search efforts are sufficient?
Mitigation disputes are fact-specific and the standard depends on your individual circumstances. Get advice on what is required in your situation and whether your severance offer properly accounts for your entitlement after mitigation.
Get Legal Advice Or call us: 1-800-771-7882Frequently asked questions about the duty to mitigate in Ontario
What is the duty to mitigate in Ontario employment law?
The duty to mitigate requires a dismissed employee to take reasonable steps to find new comparable employment after termination. Where an employee fails to make reasonable mitigation efforts and comparable employment was available, a court may reduce their damages to reflect the income they would have earned had they searched reasonably. The onus of proving a failure to mitigate rests with the former employer.
Do I have to take any job available to mitigate in Ontario?
No. You are only required to seek and accept comparable employment that is, a position that reasonably matches your prior role in terms of compensation, seniority, and working conditions. You are not required to accept a position that is inferior or that would require you to take a significant step down in your career simply to reduce your former employer's liability.
Does starting a business count as mitigation in Ontario?
It can. Courts assess whether the business venture was pursued seriously and in good faith. A well-planned entrepreneurial effort in a field where the employee has relevant experience is generally treated as a reasonable mitigation step. A speculative venture in an entirely unrelated field with minimal planning and effort is more likely to be found insufficient. Document your business activities as carefully as you would a job search.
What happens if I do not find a new job during the notice period?
If you made genuine, reasonable efforts to find comparable employment and were unsuccessful, your failure to find a job does not reduce your damages. The standard is the reasonableness of your efforts, not the outcome. Where you made diligent efforts and comparable employment was genuinely not available in your market, you are entitled to the full notice award.
Do I have to keep records of my job search in Ontario?
You are not legally required to keep records, but doing so is strongly advisable. If your former employer raises a failure to mitigate as a defence in litigation, contemporaneous records of your job search activities applications, interviews, networking, and outcomes are the most persuasive evidence that you made reasonable efforts. Records created at the time are far more credible than accounts reconstructed later.
Can my employer reduce my severance by claiming I failed to mitigate?
Only where they can prove both that you failed to make reasonable efforts and that comparable employment was realistically available. The onus rests entirely with the employer. Many severance offers are structured to create pressure around mitigation even where the employer would struggle to prove a failure to mitigate at trial. Get legal advice about whether a mitigation reduction in your offer is legally justified before accepting it.
Were you terminated without cause in Ontario and concerned about your mitigation obligations?
Understanding what mitigation requires in your specific situation and whether a severance offer properly reflects your full entitlement requires a legal assessment of your individual circumstances. Our team advises employees across Ontario on termination without cause and severance entitlements. Contact us for a confidential consultation.
Call us at 1-800-771-7882 or fill out the form below and we will be in touch.
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