In Ontario, injury victims have an obligation to do what they reasonably can to limit their losses.  For example, if physiotherapy is recommended to increase your mobility, you must undergo this treatment if you can afford it.  If not, you may not be compensated for the loss of mobility.

In a lawsuit, the defendant has the obligation the prove that the injured person, named the plaintiff, failed to prevent losses or to mitigate his or her damages.  If the court decides that the defendant has met his or her obligation, the defendant will not be ordered to pay some of the plaintiff’s damages or those damages will be reduced.

In the decisions of Janiak v. Ippolito, the Supreme Court of Canada explained that the obligation of the plaintiff to limit his or her damages is not onerous. On the other hand, the defendant has a heavy burden to prove the plaintiff’s failure to mitigate.

To prove a failure to mitigate, the defendant must prove, on a balance of probability, that the plaintiff unreasonably refused treatment and then, that this treatment would have reduced the losses.

The question of whether it was reasonable for the plaintiff to refuse a recommended treatment is a question of facts. It is not a question of law. This was clearly established in the 2019 Court of Appeal decision of Little v. Floyd Sinton Limited.

In Little, the plaintiff suffered a brain injury when she jumped from the back of a moving school bus.  As a result, she is incapable of caring for herself or making financial decisions. She will never work or live independently.  This trial was heard before a jury. The trial judge instructed the jury that as a matter of law, it could not find that the plaintiff had failed to mitigate her damages because of her incapacity. The Court of Appeal determined that the trial judge has made an error. The question of mitigation is a question of facts.  Therefore, it is up to the jury to make the determination, not the trial judge.

If the jury decides that a plaintiff has unreasonably refused treatment, the defendant must then prove that the losses would have been less as a result of this treatment.

In Little, the defendant argued that had the plaintiff regularly consulted a psychiatrist or lived in a group home – both of which she failed to do – it would have reduced the effects of her disability. The Court of Appeal rejected this argument.  It concluded that there was no medical evidence that “further psychiatric treatment or residence in a group home would have materially affected Ms Little’s situation.” (paragraph 49)

The Court of Appeal concluded by reminding us that “Merely suggesting that Ms Little should have taken some other course of action is insufficient to meet this standard and criticism of a plaintiff’s conduct must be viewed with caution.” (paragraph 51)

If you have been seriously injured and would like more information on your obligation to mitigate your damages and losses, contact one of our lawyers at Burn Tucker Lachaîne. We offer services in both French and English.

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