Failure to Mitigate Requires Employer to Prove that Better Efforts Would Have Led to a Job:

In Virk v Satnam Educational Society of BC (2020 BCSC 149) Norell J. found that a Vice Principal in Vancouver who only applied for 4 teaching jobs after termination had inadequately mitigated..

However, the judge refused to reduce the 12 month notice period because the employer led no evidence ” as to the number and types of teaching jobs available in 2009/2010 and when they we’re available ” . The Judge held that without this evidence the defendant could not prove that even if the Plaintiff had look harder, this would have likely resulted in him finding a job within the notice period.

My Comment:

With the advent of Internet job searches, it is now quite easy for employers to present this type of evidence to the Court. Smart defence counsel send this information on a regular basis to Plaintiff counsel on a with prejudice basis. If the Plaintiff uses the information and gets a job earlier, then the damages are reduced. If the Plaintiff ignores the leads, the Defendant has vastly improved their chances of getting a failure to mitigate reduction. However, if the Plaintiff applies for every lead and still does not get a job, this becomes evidence of the unavailability of comparable employment, a key Bardal Factor in assessing what the reasonable notice should be. After all, if the purpose of reasonable notice is for the Court to ascertain how long it should take a reasonable person to find a job, what better evidence that it took this Plaintiff, acting reasonably, X months to get a comparable job.