What is the burden of reducing damages on the basis of failure to mitigate?
British Columbia, Canada
The following excerpt is from Lee v. Dueck, 2012 BCSC 530 (CanLII):
The defence bears a heavy burden in establishing a reduction in damages on the basis of failure to mitigate. The applicable law is well summarized in Fox v. Danis, 2005 BCSC 102, at paragraphs 35 to 37, affirmed at 2006 BCCA 324, and I will read in those three short paragraphs:
There is no dispute that every plaintiff has a duty to mitigate his/her damages, and that the burden of proving a failure to fulfil that duty rests with the defendant, the standard of proof being the balance of probabilities: Janiak v. Ippolito, 1985 CanLII 62 (SCC), [1985] 1 S.C.R. 146.
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