What is the test for a defence of mitigation defence based on the recommendations made by the Court of Appeal?
British Columbia, Canada
The following excerpt is from Trusty v Hatch, 2021 BCSC 618 (CanLII):
A defendant can satisfy its burden to establish failure to mitigate by inference, but there must be evidence sufficient to allow for reasonable inference; speculation will not suffice: Chiu v. Chiu, 2002 BCCA 618 at para. 66; Rahimi at para. 67. In some circumstances, it may be possible to draw the reasonable inferences required to establish the defence from the terms of the recommendations made: Rahimi at paras. 67–73.
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