Divisional Court Sets Out Defence Requirements to Establish Mitigation

In Branco v. Ephstein, a motor vehicle case, the Divisional Court has ordered a new trial, on the ground that the trial judge did not adequately explain to the jury the onus that arises where a defence of mitigation is raised.

The jury had made an award of $750.00 after an eight-day trial. The Divisional Court said that “[t]he learned trial judge in his charge failed to confirm that although the plaintiff has a duty to mitigate, the defendant bore the onus of proof that the plaintiff failed to take adequate steps by way of mitigation in accordance with the principles enunciated in the case law. The omission in essence shifted the burden of proof to the plaintiff to prove that she took adequate steps to mitigate.”

After reviewing the law, the Divisional Court (Justices Gravely, Wilson and Swinton) said there are three things that the defence must establish in order to rely upon the principle of mitigation:

(1)   the steps which the plaintiff might have pursued to avert loss;

(2)   the reasonableness of pursuing those steps; and

(3)   the extent to which loss would thereby have been averted (in effect, the amount by which the damages should be reduced).

The defence, the court said, “must bring forward reasoned, factually based evidence to illustrate that the plaintiff failed to mitigate, addressing the elements in this three-part test”.

This decision makes it clear that a defendant cannot just talk about mitigation, but must lead evidence to prove the failure to mitigate.

The court attached, as an appendix to the decision, a model jury charge that properly explains the principle of mitigation. It is a precedent from British Columbia.

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