What is the burden of proving a plaintiff has suffered a loss?
British Columbia, Canada
The following excerpt is from Cunningham v. Slubowski et al and I.C.B.C., 2006 BCCA 220 (CanLII):
It is axiomatic that, in actions for damages in negligence, the plaintiff bears the burden of proving the fact that he has suffered a loss and the amount of that loss. However, when the defendant alleges a failure to mitigate, the burden shifts to the defendant to show how and to what extent the plaintiff could have minimized or avoided the loss if he had acted reasonably. Whether the plaintiff acted unreasonably, how he did so, and to what extent he did so are questions of fact. See Janiak v. Ippolito, 1985 CanLII 62 (SCC), [1985] 1 S.C.R. 146 at 151, 163-64.
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