Ontario Court of Appeal corrects nearly a decade of misapplied mitigation earnings law

For nearly a decade, a myth haunted Ontario wrongful dismissal litigation. It lived in a concurring opinion, not a majority holding, from a 2017 Court of Appeal decision. Its proposition was elegant and, for dismissed employees, enormously attractive: if a terminated worker takes a lower-paying job out of necessity, the income earned at that inferior position does not reduce their wrongful dismissal damages.

Courts repeated it. Counsel relied on it. Trial judges cited it as settled law. It was none of those things. And now, in Williamson v. Brandt Tractor Inc., 2026 ONCA 272, the Ontario Court of Appeal said so plainly.

• The "inferior job" exception to mitigation deduction was never the law in Ontario. It came from a concurring opinion, not the majority.
• All income earned during the reasonable notice period is generally to be deducted as mitigation, regardless of whether the new job pays less or carries less status.
• The burden on employers asserting a failure to mitigate is heavier than many assumed: showing a dismissed employee didn't look hard enough is not enough. Employers must also prove comparable work was actually available.

How the mitigation myth spread

To understand why this decision matters, you need to understand how the myth spread. In 2017, the Court of Appeal released a decision in which two judges in the majority reached one conclusion on mitigation, while a third judge...

Read Full Story: https://news.google.com/rss/articles/CBMif0FVX3lxTE9zMzN5SGV6V0lEVW9MajZiSFR2...