FAQ's Cases - Stewart McKelvey

Page: 16addressing the issue of a contractually fixed entitlement to damages in wrongfuldismissal, stated at pp. 1040-41:[T]he concept of a duty to mitigate is entirely foreign to aliquidated damage claim, the whole object of which Itake to be to fix a certain sum to be paid irrespective ofthe actual damage suffered by reason of the breach.How could it be right to hold a plaintiff, who can showthat his actual damage is greater, to the stipulated sum,but permit an employer who can show that it is less totake advantage of that fact? Why should such anobviously unfair and inconsistent approach be approvedwhen it is open to the additional criticism that to allow itexposes the parties to the risk, expense and uncertaintyof litigation the avoidance of which is to be presumed tobe one of the principal reasons for their stipulating forliquidated damages?2012 ONCA 425 (CanLII)...It seems to me that, as a matter of principle, wherethere is a liquidated damage clause which is valid ...there is no room for arguments on mitigation ofdamages, a concept relevant only in cases wheredamages are at large. [Emphasis in the original.]I note in passing that the respondent’s assertion that Abrahams is in “directconflict” with this court’s decision in Taylor v. Brown (2004), 73 O.R. (3d) 358(C.A.), is misplaced. Among other things, Taylor concerned the relationshipbetween common law reasonable notice and pay in lieu of common lawreasonable notice. It did not purport to address situations where notice and payin lieu are contractually stipulated.