Case snapshot
At a glance
- Case
- Wrongful Dismissal Mitigation Records: What Must You Produce?
- Court / Tribunal
- Ontario Superior Court of Justice
- Citation
- 2026 ONSC 3735 ↗
- Date
- June 25, 2026
- Area of law
- Employment Law
- Key issue
- Whether an employee pursuing a wrongful dismissal claim must produce bank statements, corporate financial records, a share purchase agreement, and detailed job-search particulars as part of their mitigation disclosure obligations.
- Outcome
- The court dismissed the motion to strike the action from the trial list, maintained the peremptory trial date, ordered additional mitigation productions, rejected rolling productions, and reserved costs — finding incomplete rather than absent compliance.
- Why it matters
- If you are suing a former employer for wrongful dismissal, failing to fully disclose your post-termination finances and job-search efforts can result in adverse inferences being drawn against you at trial.
Legal principle
The rule from this case
In a wrongful dismissal case, the employee must take reasonable steps to find comparable work after being let go — this is called the duty to mitigate. The employer bears the burden of proving the employee failed to mitigate, but that burden can only be tested if the employee provides complete and honest disclosure of their mitigation efforts. Ontario courts have confirmed that this disclosure can include bank statements, corporate financial records, share purchase agreements, and specific details about every job the employee applied for or considered. When an employee's disclosure is incomplete — not necessarily absent — a court may draw adverse inferences against that employee at trial. In other words, gaps in your records can be used against you, even if you never intended to hide anything. Courts also expect disclosure to be comprehensive from the outset: producing documents on a rolling basis after a firm deadline has passed is not acceptable under a fixed court timetable.
Important limits
What this does not mean
This decision does not mean that an employee automatically loses a wrongful dismissal case simply because their document production had gaps. The court here found incomplete compliance, not a total failure to produce, and refused to strike the claim entirely. The trial proceeds, and the employee still has an opportunity to provide the missing records and explain any gaps with a sworn affidavit. The ruling also does not shift the overall burden of proof onto the employee. The employer still carries the legal burden of demonstrating that the employee failed to mitigate their damages. What the case makes clear is that inadequate disclosure can make it easier for an employer to meet that burden — and harder for the employee to resist adverse inferences at trial. It is a procedural consequence, not a finding of wrongdoing.
What Is the Duty to Mitigate in a Wrongful Dismissal Case?
After being dismissed without cause, an employee is legally required to make reasonable efforts to find new, comparable employment. This obligation is called the duty to mitigate. It does not mean taking any job that comes along — it means genuinely searching for work at a similar level, pay, and responsibility.
If an employee does not mitigate properly, the employer can argue that the damages owed should be reduced. Our Ontario employment lawyers regularly advise dismissed workers on how to document their job search from day one, precisely because courts take this obligation seriously.
What Mitigation Records Does an Employee Have to Produce?
An employee must produce all records that give a complete picture of their post-termination financial situation and job-search activity. In Subbarama v. Sleep Country Canada Inc., 2026 ONSC 3735 (CanLII), the court confirmed that required productions can include:
- Bank statements showing income and expenses after termination
- Corporate financial records if the employee started or ran a business
- Share purchase agreements where relevant to financial dealings
- Detailed job-search particulars — every application, interview, and lead pursued
These are not optional extras. If you are claiming wrongful dismissal, your former employer is entitled to test whether you truly tried to find new work, and documents are how that gets tested.
Can an Employee Produce Documents on a Rolling Basis?
No — not when a court order has already set a firm deadline. The court in this case rejected the idea of “rolling” productions after a fixed timetable was in place. Once a deadline is ordered, you must provide comprehensive disclosure by that date, not piece it together over time.
The court also required the employee to file a sworn affidavit of documents explaining any gaps in the record. If your bank statements have missing months or your job-search log is incomplete, you need to account for that under oath.
What Happens If My Disclosure Is Incomplete?
Incomplete disclosure can lead to adverse inferences being drawn against you at trial. An adverse inference means the judge may assume the missing documents would have hurt your case — even if you had a perfectly innocent reason for not producing them.
The court here drew a clear distinction between incomplete compliance and no compliance at all. Because the employee had produced some records, the action was not struck from the trial list. But the court made clear that ongoing gaps could have real consequences when the trial judge weighs the evidence.
Who Bears the Burden of Proving Failure to Mitigate?
The employer bears the burden of proving that the employee failed to mitigate. This is an important protection for dismissed workers — you do not have to prove you mitigated perfectly. The employer must show you fell short.
However, that burden becomes much easier for an employer to meet when the employee’s records are missing or incomplete. A thorough, organized record of your job search is your best defence against a mitigation argument.
Can the Court Strike a Wrongful Dismissal Claim for Production Problems?
Striking a claim from the trial list is a drastic remedy, and courts are reluctant to use it unless the non-compliance is serious and ongoing. In this case, the court dismissed the motion to strike and maintained the peremptory trial date, finding that the better course was to allow further examinations and order the missing productions.
The court also noted that the employer had overstated the prejudice caused by the production gaps. If you are facing a motion to strike in your employment case, the strength of that motion depends heavily on the degree and duration of non-compliance — not just the fact that something was missing.
Practical Takeaways for Dismissed Employees
- Start your job-search log immediately after termination — record every application, contact, and interview with dates.
- Keep all financial records from the day you are let go, including bank statements and any business income, even if you think they are irrelevant.
- Meet every court deadline for document production; rolling or staged disclosure after a fixed order is not acceptable.
- Explain gaps proactively — if a document does not exist or is unavailable, say so in a sworn affidavit rather than staying silent.
- Get legal advice early — if you are considering a wrongful dismissal claim in the Hamilton or Oakville area, understanding your production obligations before litigation begins can protect your case from the start.
UL Lawyers offers a free initial consultation from our Burlington office and serves clients across Ontario. If you have questions about a wrongful dismissal claim or your obligations during litigation, speak with our employment law team to understand your rights before gaps in your records become a problem at trial.
This article is automated commentary on a public court decision and is for general information only — not legal advice. Decisions rely on facts unique to each case. If you are affected by a similar issue, contact a lawyer for advice specific to your situation.
FAQ
Frequently asked questions
A reasonable job search means actively applying for positions that are comparable to your previous role in terms of pay, responsibility, and industry. Courts look at the number of applications, the types of jobs pursued, and whether you followed up on leads — keeping a detailed log from day one is the best way to demonstrate your efforts.
Courts treat striking a claim as a last resort and will generally order additional productions and examinations before dismissing an action outright. However, persistent or deliberate non-compliance can ultimately put your claim at risk, and gaps in your records can lead to adverse inferences at trial.
Yes — if you start or invest in a business after termination, the income and financial records from that business are relevant to your mitigation obligations and must be disclosed. Courts can draw adverse inferences if those records are withheld or incomplete.