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    Suffered a financial loss and want to sue? You have the duty to mitigate.

    Duty to Mitigate

    When you suffer a financial loss that gives rise to a claim, there is an obligation on you to try and minimize your losses. This is referred to as the duty to mitigate. A common question is, does the duty to mitigate extend to an obligation to sue all potential parties who may be responsible for the loss you incurred? The following examples will help explain.

    The Duty to Mitigate

    In Ontario, you have a duty to mitigate your loss. Simply put, if you have a reasonable option available to you to reduce your losses, you should exercise that option. Generally, you will not be able to recover for those losses which could have been avoided by taking reasonable steps. Here is an example:

    A cyclist scrapes the door of your car, scratching the paint. You could go and fix the paint at a cost of $500.00. You choose not to fix the door right away and instead, wait for a year. By that time, the whole door is rusted, and you need to replace the entire door, at a cost of $2000.00.

    You then sue the cyclist for $2000.00 because the door would not have rusted if it were never scratched. However, the Court will likely find that you ought to have taken reasonable steps to mitigate your damages by getting it fixed earlier, at the lower cost of $500. Your failure to mitigate resulted in $1500.00 in extra damages, and therefore you will only be awarded $500.00.

    Although the above is a straightforward example, sometimes the question of “what is a reasonable step” to mitigate, is a complex question.

    Who to sue?

    Taking the cyclist example and expanding on it, assume that two people are riding a tandem bicycle and they scratch your car door. Who should you sue? If you only sue one person of the two, can that person claim that you failed to mitigate your damages by not suing the other?

    The short answer is no. You are entitled to choose who you want to pursue a claim against and failing to choose one over the other is not a failure to mitigate.

    One situation exists, however, where the failure to sue a different party may result in a Court finding you failed to mitigate. This is when the defendant can show that if you had sued the other party the total amount of damages would have been less. This is best illustrated by another example:

     An Ontario Court found that a Plaintiff failed to mitigate their damages when they did not take legal action against a third party – a retailer – to stop them from selling their trademark infringing goods.

    Had the Plaintiff taken legal action against the third-party, their total damages against the main Defendant (the infringer) would have been less. Not suing that third-party lead to a higher total amount of loss and the Court found the Plaintiff ought to have mitigated their damages by suing the third-party, rather than the infringer.

    The Courts will likely find a duty to mitigate does not exist where the amount of the claim is the same and the question is merely “which party to sue”. However, if you could have reduced your total amount of loss by suing a different party, then the Courts may find you failed to mitigate your losses.

    If you have suffered damages and are unsure of who to sue, or how to reasonably mitigate your losses, contact one of our experienced litigation lawyers at Merovitz Potechin LLP.

    The content on this website is for information purposes only and is not legal advice, which cannot be given without knowing the facts of a specific situation. You should never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. The use of the website does not establish a solicitor and client relationship. If you would like to discuss your specific legal needs with us, please contact our office at 613-563-7544 and one of our lawyers will be happy to assist you.

    Aaron King

    Posted By: Aaron King of Merovitz Potechin LLP


    Aaron King is a litigation associate at Merovitz Potechin LLP practicing in the areas of commercial and civil litigation, estate litigation, mortgage enforcement and other debt collection.

    Aaron enjoys the intricacies and challenges of litigation and approaches each unique case attentively and thoroughly. He focuses on how he can help his clients in the most effective ways, understanding that litigation is rarely an ideal situation.

    Aaron has always had an interest in law and knew early on he wanted to become a lawyer. Prior to law school, Aaron attended Carleton University where he graduated with a Bachelor of Arts (Honours) with a focus on Legal Studies.

    During law school, Aaron focused on litigation and took on a variety of challenges in different areas of law. Aaron participated in two international competitive moots – The Willem C. Vis moot, an international commercial law and arbitration moot in Vienna, Austria, and the Philip C. Jessup moot, a public international law moot in Washington D.C. Aaron continues to give back to the moot program at the University of Ottawa, most recently coaching the Wilson Moot team.

    Coming from a criminal law background, Aaron has a lot of experience advocating for his clients in the Courtroom with various trial and motion appearances. He recognizes, however, that many disputes can be resolved before going to court and focuses on alternative methods to resolving various issues efficiently and effectively before resorting to trial.

    Outside of the office, Aaron enjoys spending time with his family, playing soccer, and drinking coffee.