The Legal Obligation to Mitigate Damages in BC

Published by:
Mike Chelbet

Reviewed by:
Alistair Vigier
Last Modified: 2024-05-16
People must mitigate damages in BC.
Mitigation, generally speaking, is when you cause the reduction of the seriousness, severity, damage or painfulness of a thing. The word mitigation is used in numerous areas and carries numerous meanings depending on the context in which it is applied.
There can be emergency management mitigation, environmental mitigation, I.T. vulnerability mitigation, disaster mitigation, hazard mitigation, and business loss mitigation, amongst others.
Mitigation is somewhat unique regarding what has been called “the duty to mitigate” for Plaintiffs in legal actions. A plaintiff is a party that commences a lawsuit for damages in the court system. Plaintiffs must mitigate their damages by taking positive steps to ameliorate their losses.
The duty to mitigate is obligatory for a plaintiff. They cannot simply decide not to mitigate their losses and expect the defence to make them whole for damages they could have avoided by taking action.
That being said, the forms that mitigation can take can change depending on the type of lawsuit.
Mitigation in Personal Injury Claims in British Columbia
Mitigation can take different forms depending on the lawsuit and the jurisdiction of personal injury claims. If you are in a personal injury lawsuit in British Columbia, depending on the type of accident, the duty to mitigate can factor in different ways.
If you suffer an injury in a slip-and-fall accident, you are required to mitigate your damages by following your doctor’s advice on what medication to take, what therapies to engage in (for example, physiotherapy, registered massage therapy, kinesiology, etc.), and what lifestyle changes to make, among other things.
Most medications and medical therapies cost money to access if you are injured in an accident, and not everyone has access to funding to do so. Private insurance and some disability benefits provide access to some treatments.
BC Law: Your Duty to Minimize Damages Explained
If you were injured in a car accident in British Columbia, and you have a personal injury claim for that injury, then ICBC rehabilitation benefits become a significant factor when it comes to mitigation.
A mandatory universal insurance scheme in British Columbia requires every driver to carry at least minimum ICBC insurance coverage.
This insurance coverage carries rehabilitation benefits, which can be accessed regardless of who is at fault for the accident. These are often referred to as Part 7 benefits, as they are legislated for in Part 7 of the Insurance (Vehicle) Act Regulations.
Mitigating Damages in BC: How and Why It’s Essential
In cases where ICBC insurance comes into play, the lack of funds to access treatment should not be an issue, as rehabilitation benefits should be available to almost everyone in a motor vehicle accident.
In such a case, lack of funding is not a reasonable excuse. Failure to use the rehabilitation benefits to access rehabilitation treatments would be considered a failure to mitigate your damages.
Mitigation in personal injury claims can be a complex area to understand, requiring the assistance of a lawyer well-versed in personal injury law.

Mitigation in Employment Law Claims in British Columbia
In employment law claims, the duty to mitigate differs in that access to funding does not limit a party’s ability to mitigate. In these claims, access to employment can be a bar to mitigation.
Employment law cases sometimes claim the duty to mitigate. This arises in wrongful dismissal claims where the Plaintiff claims they were dismissed wrongfully.
It can be without cause or for another reason, and as such, they are entitled to a reasonable period of severance payments. This amount will depend on several factors, including the plaintiff’s age, length of service, rate of pay, and, importantly, the availability of comparable employment.
Navigating the Obligation to Mitigate Damages in BC: A Primer
As with personal injury law, the Plaintiff must mitigate damages in employment law claims. However, the form this mitigation takes differs depending on the damages sought. In the personal injury context, a Plaintiff tries to mitigate the damages flowing from injuries, often by caring for and treating those injuries.
In many employment law claims, the damages arise from an employee’s termination without cause. The damages that flow from such an act are severance payments owed for the period of reasonable notice the Plaintiff ought to have been entitled to have their employment terminated properly.
So, how does one mitigate this type of damage?
Simple.
By getting a new job.
Mitigate Damages in BC
Once a plaintiff in a wrongful dismissal claim finds a new job, assuming they do so during the notice period, they would have been entitled to it before the termination.
Any monies earned from their new job during what would have been their notice period would be offset against any monies owed by their former employer for the wrongful dismissal.
Depending on the pay rate at a new job, this can partially or completely mitigate an employee’s losses in a wrongful dismissal claim.
What makes mitigation in employment law matters interesting is that it often feels like the wronged employee is saving their old employer money by lowering the amount they are owed by finding a new job.
Regardless of how one might feel about it, mitigation is required, and a Plaintiff that shirks that duty does so at their peril.
Inaction Can Cause Problems
Inaction can lead to an argument that a Plaintiff failed to mitigate damages and that a Court should reduce the amount they seek in their lawsuit.
A failure to take action and treat your injuries as advised in a personal injury action can fail to mitigate damages. In employment law it is also a failure to take action, the action of finding new employment, that can lead to a failure to mitigate damages.
Regardless of the type of lawsuit you are involved in, it is important to have experienced legal advice regarding mitigation matters, as it can’t significantly impact your legal claim.
RELATED POSTS
No related posts found.