The 'all verbal' defense didn't work; court demanded complete documentation
An Ontario court has ordered a terminated employee to produce comprehensive documentation of his job search efforts after he provided only a brief log of six applications and claimed the rest of his mitigation efforts were conducted verbally with no paper trail.
Associate Justice Glick ruled on Feb. 2, 2026, that David Handy, a former DEF truck driver for M&C Investments Incorporated, must conduct a thorough search for records relating to his mitigation efforts and serve a better affidavit of documents within 30 days. The wrongful dismissal case involves disputes over the nature of Handy's Nov. 13, 2024 termination, the enforceability of a termination clause in his employment agreement, and what steps he took to find new work during the notice period.
The trickle of disclosure
Handy initially provided no mitigation documentation in his first affidavit of documents, despite claiming in his statement of claim that "he has attempted to mitigate his damages and sought other reasonably comparable positions" and seeking reimbursement for "job search expenses and any relocation expenses incurred as special damages, the full particulars of which will be provided before trial."
His supplementary affidavit contained only a short application log listing six jobs he applied to in November 2024. No resume, no employment insurance records, and no information about job outcomes appeared in the disclosure. When the employer pressed for more documentation, Handy's lawyer responded that "the documents we provided are the ones we had."
Employment insurance payment records finally surfaced in late September 2025, months after the employer first requested them. A resume appeared in October. When Handy obtained new employment that same month, he again provided no application records or employment details, with his counsel advising that "any further information sought could be addressed through oral discovery and any undertakings that may follow."
The verbal applications claim
The employer refused to proceed with examinations until receiving proper documentation of mitigation efforts. Handy's counsel responded that "my client says no such documents exist. While he mitigated, he has no contract or email confirmation since it was all verbal. That is, still, allowed under the law."
The court found this position problematic, particularly given that parties had agreed to "abide by a policy of full disclosure, meaning that they shall disclose in their respective Affidavits of Documents, all documents which are arguably relevant to this proceeding." Justice Glick noted that "the trickle of disclosure of documents relating to mitigation, only in response to the Defendant's repeated requests" and the fact that Handy "has obtained new employment but has produced no records with respect to same" demonstrated inadequate searching.
The plaintiff provided no evidence about what searches he conducted for relevant documents or why employment insurance records failed to appear in three separate affidavits of documents.
Discovery obligations in simplified procedure
The case proceeded under Ontario's Simplified Procedure rule, which limits examination times and requires court leave for further examinations. Justice Glick found the employer's refusal to proceed with discovery until receiving complete disclosure was reasonable.
The court noted that "if the Defendant proceeds to discovery without receiving fulsome disclosure with respect to the Plaintiff's attempt to mitigate, including information about his new employment, the Defendant runs the risk that it will lose the opportunity to ask questions with respect to any documents produced after discovery."
The court acknowledged that "the burden lies with the employer to prove the mitigation efforts were unreasonable" and that "the standard for job efforts in mitigation is not perfection." However, Justice Glick concluded that "the Plaintiff has not, to date, conducted a diligent or comprehensive search for relevant documents or 'arguably relevant documents' as he agreed to in the discovery plan."
