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Mitigation

. Tribute (Springwater) Limited v. Atif

In Tribute (Springwater) Limited v. Atif (Ont CA, 2021) the Court of Appeal considered mitigation as a damage issue:
[14] As a general rule, a plaintiff is not entitled to recover for losses which could have been avoided by taking reasonable steps. Where it is alleged that the plaintiff failed to mitigate damages, the onus is on the defendant to prove both that the plaintiff failed to make a reasonable efforts to mitigate, and that mitigation was possible: Southcott Estates Inc. v. Toronto Catholic District School Board, 2012 SCC 51, [2012] 2 S.C.R. 675, at paras. 24, 45.
. Bowman v. Martineau

In Bowman v. Martineau (Ont CA, 2020) the Court of Appeal commented on mitigation:
[31] The respondents [plaintiffs] were required to make reasonable efforts to mitigate their damages. It is the appellants’ [defendants] onus to demonstrate they failed to do so: Janiak v. Ippolito, 1985 CanLII 62 (SCC), [1985] 1 S.C.R. 146, at p. 163. I see no error in the trial judge’s conclusion that the appellants did not meet that onus. The trial judge’s determination of the mitigation issue was reasonable in the circumstances of this case. His conclusion is therefore entitled to deference on appeal.
. Azzarello v. Shawqi

In Azzarello v. Shawqi (Ont CA, 2019) the Court of Appeal commented as follows on mitigation:
[39] The duty to mitigate is derived from the proposition that the wronged party cannot recover from the defaulting party for losses that could reasonably have been avoided: S.M. Waddams, The Law of Contracts, 7th ed. (Toronto: Thomson Reuters, 2017), at p. 529. It cannot be reasonable for a vendor to be obliged to reduce the loss it claims from the defaulting party by reselling the property to that party, then suing him or her for the difference. This would offer no financial advantage to the defaulting party as that party would be obliged to pay the same amount, either way. Yet the defaulting party would secure a significant tactical and procedural advantage over the innocent vendor.
. Curley v. Taafe

In Curley v. Taafe (Ont CA, 2019) the Court of Appeal stated as follows on mitigation:
[38] It is a basic tenet of contract law that a victim of a breach cannot recover losses that could have been avoided by taking reasonable steps post-breach; this principle against avoidable loss applies in all contractual settings: John D. McCamus, The Law of Contracts, 2nd ed. (Toronto: Ont.: Irwin Law, 2012), at p. 926. The burden of establishing that the plaintiff failed to take reasonable steps to mitigate damages is on the defendant: McCamus, at p. 928; Red Deer College v. Michaels, 1975 CanLII 15 (SCC), [1976] 2 S.C.R. 324, at p. 331.




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