In employment and human rights law in Alberta, mitigation generally refers to the legal duty of a person who has suffered a loss—such as being wrongfully dismissed or experiencing a human rights violation—to take reasonable steps to reduce or “mitigate” that loss. Here’s a breakdown of how mitigation applies in these areas:
1. Mitigation in Employment Law
When an employee is wrongfully dismissed (terminated without just cause and without proper notice or severance), they have a legal obligation to try to find comparable employment to reduce their financial losses.
Key principles of mitigation in employment law:
- Reasonable Efforts: The employee must make reasonable attempts to find a new job. The courts do not expect the employee to accept any job but rather one that is comparable in terms of salary, responsibilities, and working conditions.
- Burden of Proof: The employer must prove that the employee failed to mitigate their damages if they want to reduce the compensation owed.
- Effect on Damages: If the employee finds new employment, any earnings from that job may reduce the amount of damages (e.g., severance) the employer must pay. If the employee unreasonably fails to mitigate, their entitlement to damages may be reduced.
2. Mitigation in Human Rights
In cases of discrimination or human rights violations (under the Alberta Human Rights Act), a complainant also has a duty to mitigate their losses.
Key principles of mitigation in human rights cases:
- Mitigating Emotional and Financial Harm: If the discrimination caused loss of employment or psychological harm, the complainant should take reasonable steps to find new work or seek medical treatment to reduce their losses.
- Impact on Remedies: Failure to mitigate can affect monetary compensation for lost wages or damages for pain and suffering.
- Contextual Approach: Human rights tribunals often apply a more flexible approach to mitigation, recognizing that victims of discrimination may face barriers to finding new work or recovering emotionally.
What is not required for Mitigation?
- Employees are not required to accept a demotion or a role that is humiliating.
- Employees do not need to work in an intolerable environment (e.g., returning to work where discrimination occurred).
- Complainants are not expected to take extraordinary or unreasonable measures to reduce their losses.
Generally, substantially comparable employment refers to a new job that is reasonably similar to the employee’s previous position in terms of key factors like salary, benefits, responsibilities, working conditions, and career status. When an employee is wrongfully dismissed, they are expected to seek and accept employment that is comparable—but not necessarily identical—to their former role.
Key Factors in Determining Substantially Comparable Employment
1. Compensation
2. Wages or salary should be reasonably similar. Comparable benefits (e.g., health insurance, retirement contributions, bonuses).
3. Duties and Responsibilities
4. Similar job duties, skill levels, and authority. The new role should align with the employee’s professional experience and qualifications.
5. Status and Seniority
6. The position should reflect the employee’s career level (e.g., a managerial employee is not expected to accept a junior role).A demotion or position with less prestige is usually not considered substantially comparable.
7. Location and Working Conditions
8. Reasonable commuting distance from the employee’s residence. Comparable work environment (e.g., office vs. fieldwork, remote vs. in-person).
9. Industry and Career Path
10. Jobs in the same industry or a closely related field are preferred. Courts may not require a shift to an entirely new career unless no comparable jobs exist.
11. Job Security and Duration
12. Permanent or long-term positions are generally more comparable than temporary roles. Employees are not required to accept precarious or unstable jobs.
Legal Considerations
- Reasonableness Standard: The law requires only reasonable efforts to find comparable work—not accepting any available job.
- No Duty to Accept Inferior Jobs: Employees do not have to accept a position with significantly lower pay, status, or dignity.
- Burden of Proof: It is the employer’s responsibility to prove that the employee failed to mitigate by rejecting or not seeking comparable employment.
*Always seek legal advice. The above is for information purposes only.
Stephen Dugandzic received his Juris Doctor degree from the University of Alberta in 2013 and is Calgary-based. He previously practised with Bennett Jones LLP and Taylor Janis LLP before founding YYC Employment Law Group in 2018 and Evolution Legal in 2026.