Documentation:Torts/Mitigation

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TORT LAW
CASEBOOK
Introduction
Dignitary Torts
Defamation • Discrimination • Harassment • Intentional infliction of mental suffering • Invasion of privacy • Trespass to the person
Property Torts
Interference with goods • Interference with land • Non-natural use of land • Private nuisance • Public nuisance
Negligence Tort
Duty of care • Breach of duty • Damage • Causation • Remoteness
Negligence Categories
Employment • Environmental pollution • Harmful products • Hosting patrons and guests • Infliction of mental injury • Misrepresentation • Occupation of premises • Professional services • Public authorities • Pure economic loss • Relational economic loss • Rescuers • Shoddy goods or structures • Treatment of indigenous children • Unborn children
Dishonesty & Abuse of Position Torts
Abuse of process • Breach of confidence • Conspiracy • Fraud • Inducing breach of contract • Injurious falsehood • Intimidation • Malicious prosecution • Misfeasance in public office • Passing off • Spoliation • Unlawful interference with economic interests
Strict Liability
Keeping dangerous animals • Non-natural use of land • Ultrahazardous activities • Vicarious liability
Defences
Apportionment of liability • Consent • Defamation defences • Defence of property • Denials • Excuses • Illegality • Legal authority • Limitation • Necessity • Self-defence
Remedies
Apologies • Damages • Injunctions • Insurance • Legal costs • Mitigation • Proprietary
Tort Law & Legal Systems
Charter values • Class actions • Concurrent actions • Constitutional torts • Indigenous dispute resolution • No-fault compensation schemes
Tort Theory
Instrumental theories • Constructive theories • Critical theories • Reflexive theories
Study Resources
1L strategy • Answer exercises • Quizzes • Beswick's course site • Opening Up Tort Law Project
Index
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Mitigation

In private law, the obligation to mitigate losses is a fundamental principle that places an expectation on the injured party to take reasonable steps to minimize or mitigate the loss they suffer as a result of another party's wrongful act or negligence. This obligation arises from "a legal understanding of the victim as an agent in their life who is capable of making choices that may not be the responsibility of the defendant."[1]

According to the mitigation principle, if a person fails to take reasonable measures to minimize their losses, they might be precluded from claiming or recovering damages to the extent that such losses could have been avoided, as "the defendant will only be liable for reasonable costs associated with the plaintiff’s injury."[1]

Mitigation of loss: definitions and rationales

Mitigation of loss in tort law is better understood as an obligation to mitigate losses, rather than a legal duty as such.[2] It is not a duty the plaintiff owes the defendant, but an expectation the law puts on the plaintiff to act reasonably in their own case.

Mitigation explained
This video from an attorney at Peter J. Lamont summarizes what the obligation to mitigate means for an injured plaintiff.[3]

Another way to understand the obligation is to view it as a "limitation" on a plaintiff's claim.[4] The plaintiff is free to incur unnecessary losses if they choose, but the defendant will only be liable to compensate for those losses that can be reasonably attributed to the purpose of rectifying the plaintiff's injury.[4][5] As such, the key rationale underlying the principle of mitigation is "fairness".[6]

The obligation to mitigate is also concerned not with the overall harm the plaintiff has suffered, but rather the loss that is connected with the harm.[7] Therefore, the plaintiff is not expected to minimize the harm they have suffered, but only to minimize the loss (e.g., financial loss) which arises from the harm.[7]

Determination of damages

The obligation to mitigate is made up of three general rules of recovery:

  1. A plaintiff cannot recover for reasonably avoidable losses.
  2. A plaintiff can recover for loss incurred in reasonable efforts to mitigate.
  3. A plaintiff cannot recover for avoided losses.[8]

In ascertaining the damages to which an injured party should be entitled, the obligation to mitigate often goes hand in hand with the compensatory principle that an injured party should be placed in the position they would be in if it were not for the tortfeasor's wrongdoing.[9] The reasonable steps taken in mitigation "fix the measure of compensatory damages."[9]

The defendant bears the burden of showing that the plaintiff could have taken reasonable steps to avoid a loss or that the plaintiff's conduct was unreasonable.[10] Still, the plaintiff does not have to take extreme or extraordinary measures; acting prudently under the circumstances is sufficient to demonstrate mitigation.[10][11]

White chickens clustered in an enclosure on a farm.

Courts consider the possible avenues of mitigation that were reasonably available to the plaintiff when assessing a claim. In Slater v. Pedigree Poultry Ltd, the defendants asserted that the plaintiffs (an egg producer) should have mitigated their losses after the Saskatchewan Broiler Hatching Egg Producers’ Marketing Board denied them their expansion quota while granting an expansion quota of 58,220 bird units to all other producers who had requested one.[12] Part of the defendants' argument was that the plaintiffs should have bid on additional bird units in an auction (where the units were ultimately purchased for $360,000),[13] but the Saskatchewan Court of Appeal questioned whether this would have been reasonable to expect and further emphasized that the law does does not require a plaintiff to take extraordinary measures.[11]

In Maple Leaf Foods, a group of former Mr. Sub franchisees sought damages against Maple Leaf Foods due to a meat product recall arising from a listeria outbreak.[14] The court noted that the franchisees did not take advantage of a clause in the franchise agreement that allowed them allowing them to seek Mr. Sub’s permission to find a different meat supplier.[15] Supposedly, if the franchisees had sought this avenue, their losses from the listeria outbreak would have been lower.

Discussion questions

  • Why does the common law expect plaintiffs to mitigate their loss? Why shouldn’t defendants be liable for all of the losses their tortious conduct causes?
  • What is the consequence for a plaintiff who does not reasonably mitigate their loss?
  • Which party bears the onus of demonstrating that the plaintiff (in)adequately mitigated their loss?

Quiz


  1. ↑ 1.0 1.1 Compeau, Emma (2020). "The Price of God: Understanding Reason and Religion in the Duty to Mitigate". Appeal: Review of Current Law & Law Reform. 25: 94–95.
  2. ↑ Thibierge, Louis (2016). "L'obligation de minimiser son préjudice" [The Obligation to Mitigate Loss]. International Business Law Journal. 4: 365.
  3. ↑ Quimbee (12 July 2017). "New York Times Co. v. Sullivan Summary". Youtube.
  4. ↑ 4.0 4.1 Compeau, Emma (3 June 2021). "The Price of God Understanding Reason and Religion in the Duty to Mitigate". Appeal: Review of Current Law & Law Reform. 25: 94.
  5. ↑ Darbishire v. Warran, [1963] EWCA Civ 2 (BAILII).
  6. ↑ Slater v. Pedigree Poultry Ltd, 2022 SKCA 113 (§20.2.1) at para 267.
  7. ↑ 7.0 7.1 Thibierge, Louis (2016). "L'obligation de minimiser son préjudice" [The Obligation to Mitigate Loss]. International Business Law Journal. 4: 365–66.
  8. ↑ McGregor, Harvey (1997). McGregor on Damages (16th ed.). London: Sweet & Maxwell. pp. 285–287.
  9. ↑ 9.0 9.1 Sharp Corp. Ltd. v. Viterra B.V., [2024] UKSC 14 (§20.2) at para 86.
  10. ↑ 10.0 10.1 Cassels, James; Adjin-Tettey, Elizabeth (2014). Remedies: The Law of Damages (3d ed.). Toronto: Irwin Law. pp. 430–431.
  11. ↑ 11.0 11.1 Slater v. Pedigree Poultry Ltd, 2022 SKCA 113 (§20.2.1) at para 275.
  12. ↑ Slater v. Pedigree Poultry Ltd, 2022 SKCA 113 (§20.2.1) at para 66.
  13. ↑ Slater v. Pedigree Poultry Ltd, 2022 SKCA 113 (§20.2.1) at para 274.
  14. ↑ 1688782 Ontario Inc v. Maple Leaf Foods Inc, 2020 SCC 35 (§19.3.2.2) at para 1.
  15. ↑ 1688782 Ontario Inc v. Maple Leaf Foods Inc, 2020 SCC 35 (§19.3.2.2) at para 11.
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