Anything goes for mitigation income: Williamson v. Brandt Tractor Inc.

Dan Wilband, JD/BCL, MA

The Ontario Court of Appeal just put to rest a widespread mitigation myth. Employers should take note.

For nearly a decade, a concurring opinion in a 2017 Court of Appeal decision was sometimes read, by courts and counsel alike, as binding authority for a seductive proposition:

If a dismissed employee takes a lower-paying job out of necessity, that income does not count against wrongful dismissal damages.

Plaintiff counsel have often built positions around it. Here, the trial judge cited it.

But this week, the Court of Appeal set the mitigation record straight on two fronts.

First, on the “inferior job” myth. The court confirmed in unambiguous terms that it was never the law in Ontario. It came from a concurring opinion. The actual majority holding in that 2017 decision was straightforward: all new employment income earned during the notice period is generally to be treated as mitigation of loss. The court reversed the trial judge’s refusal to deduct over $32,000 the employee earned during the notice period simply because his new job paid less and ranked lower.

Second, and just as importantly, the court addressed the burden of proof.

Employers often argue that a dismissed employee failed to mitigate by not pursuing comparable work. But the court was clear: establishing that the employee did not look for comparable work is not enough. The employer must also prove that comparable work was actually available. It must show that reasonable efforts would have led to a comparable position. Here, the employer could not meet that burden, and its mitigation argument failed on that ground entirely.

Expect this decision to be relied on frequently by both employers and employees.

Williamson v. Brandt Tractor Inc., 2026 ONCA 272