Employee Not Entitled to Await Information to Ascertain Likely Success of Claim before Suing Employer
January 27, 2020
In a decision released at the end of 2019, the Ontario Court of Appeal affirmed that the two year limitation period for wrongful dismissal claims arising out of the Limitations Act is not subject to a sliding scale based on when the employee learns that the action may succeed but rather, when the cause of action arose.
In this case, the employee was a delivery driver. He was terminated in 2009 for alleged theft of product; he retained counsel and alleged wrongful dismissal shortly thereafter. However, he was then criminally charged. The employee’s evidence was that he could not commence proceedings against his employer for wrongful dismissal because if he was criminally convicted his wrongful dismissal action had no chance of success.
He was convicted in 2011 and he appealed. In 2014, his appeal was successful and the conviction was set aside. In 2015, he commenced wrongful dismissal proceedings against his employer. The court dismissed the action as statute barred and the employee appealed to the Court of Appeal.
At issue on the appeal was whether s.5(1)(iv) of the Limitations Act should be interpreted to mean that the employee’s limitation period did not begin to run until he could determine whether it was appropriate to bring the action. s.5(1)(iv) provides that a claim is not “discoverable” and hence the limitation period does not begin to run until the earlier of 4 times, (iv) being “having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.”
Prior case law had interpreted “appropriate” to mean “legally appropriate” and not an evaluation of whether a civil proceeding would actually succeed and that was precisely what the employee was attempting to do here. Unlike an action against the police associated with the laying of a criminal charge, the court found such a circumstance to be distinguishable. The court of appeal found that the Act does not entitle the employee to perform an evaluative analysis of the claim, which would be a slippery slope and would transport the law back to the same state it was in prior to the revisions to the Act in 2002, which was not the intention. The appeal was dismissed.
This decision creates greater certainty for employers faced with potential wrongful dismissal actions by employees who are released for conduct for which they are criminally charged. It also puts those employees in a position where they may have to participate in giving evidence civilly in advance of determination of criminal matters which may be harmful in a criminal context if they do chose to proceed with civil action while criminal charges are pending.
Sosnowski v. MacEwen Petroleum Inc., 2019 ONCA 1005