Stuart Rudner here with Rudner Law’s first-ever video blog or vlog. Today I’m going to be discussing limitation periods.
At Rudner Law we are often asked how long someone has to bring a wrongful dismissal claim. In Ontario, the answer is 2 years, but the more important question is, when does that time period start to run. The answer to that question can mean the difference between being able to advance your claim and being told you can’t, even if it was perfectly legitimate, and might be worth a whole lot of money. It’s critical that you get this right, and two recent cases provide examples where plaintiffs waited unknowingly and missed a limitation period, and therefore were not able to pursue their claim.
In the first, Kennedy v. RBC, there was a somewhat convoluted set of facts where the individual purported to resign, then tried to recant her resignation, then was dismissed, and there followed a lengthy period of negotiation, which ultimately failed, at which point the plaintiff tried to bring a wrongful dismissal claim. At that point the bank, RBC brought a motion to dismiss the claim, saying she’d missed the 2 year limitation period, and ultimately the bank was successful. What the court said in that case, was that for wrongful dismissal claim, the limitation period is 2 years, as we all know, but the cause of action arises, so the time period starts to run when the employer provides insufficient notice. Not at the end of the notice period, not when the employee realizes that it was insufficient notice, but when they provided insufficient notice, and importantly, for a lot of employees, the time period does not stop and it’s not paused if the parties are negotiating. Sometimes less than ethical employers will drag out the negotiations and hope that the time period will lapse while they do so. Employees have to be very vigilant in that case because otherwise they might think that they are negotiating, with their plan B being to file a claim, and all of a sudden realize that the negotiations have fallen apart and they don’t have a plan B, because they don’t have a legal right to pursue a claim. That’s one recent example.
The second is, and I have to check the name here, Bailey v. Milo-Food & Agricultural Infrastructure & Services, in that case we had a situation where the employer provided the employee with 2 years of working notice. Now, to digress briefly, this shocks a lot of people, but employers in Canada are perfectly within their rights to provide working notice of dismissal, as opposed to providing a package, which of course is far more common. Now whether working notice is viable in all circumstances is certainly open to debate, I would say it’s not, in many cases, although in some cases it can work quite well for both parties, but in this case, 2 years of working notice was provided, the individual worked through the 2 years, waited another half a year, approximately, and then filed a claim for wrongful dismissal. And just like in Kennedy and RBC, in this case the employer brought a motion to dismiss the claim, saying that the plaintiff had missed the limitation period, and again in this case the plaintiff was unsuccessful, the claim was dismissed without ever being considered on the merits.
So two recent examples of plaintiffs who may well have had a legitimate claim, but were shut out because they waited too long.
So, what’s the moral of story? Be aware of your rights, but also be aware of how the law impacts them. If you’re an employee and you think you might have a wrongful dismissal claim, consult an employment lawyer. I say this quite often in my online show Fire Away, if you think you might need an employment lawyer, you probably do. See them sooner rather than later to make sure that you don’t miss a deadline, and if you’re an employer and you’ve just received a claim, or a threat of a claim, from an employee that you thought was long gone, consult your employment lawyer because you may not even have to deal with the merits of the claim, you may be able to have it struck out just based upon the fact that the employee missed the limitation period.
So that’s all for today, thanks for tuning in.