November 15, 2013
generic viagra without a doctor prescription usa Appeal Court Allows Wrongful Dismissal Claim to Proceed
Mr. Spiers (the “Employee”) worked for Canon Canada Inc. (the “Employer”) for approximately 19 years. In May 2006, he stopped working due to illness and was approved to receive short-term disability benefits by the Employer. The disability payments were terminated after approximately seven and a half weeks.
The Employee brought an action against the Employer for payment of additional short-term disability benefits and against Manulife Financial for long-term disability benefits. The claim against Manulife Financial was settled at mediation.
On January 13, 2010, the Employee wrote a letter to his Employer advising that he was able to return to work. The Employer did not respond to the Employee’s request. As a result, in May 2012, the Employee brought a motion to amend his Statement of Claim to allege constructive dismissal because the Employer failed to respond to his return to work letter.
The lower court held that the proposed claim for wrongful dismissal was statute barred because the Employee did not bring a claim within the two year limitation period which started to run on January 13, 2010, when the “employee knew or ought to have known” that he had a claim for wrongful dismissal.
The Court of Appeal overturned the lower court’s decision because it was “not tenable that merely by sending a letter saying he (the Employee) was prepared to go back to work, Mr. Spiers would know that Canon was refusing to take him back. Some response from Canon was required either expressly or by inference.”
It was conceded on appeal that at least some reasonable time period must elapse from the date of the Employee’s letter where it could be reasonably found either “expressly or by silence” that the Employer was rejecting the Employee’s request to return to work. However, in this case, there was no evidence to support exactly when the Employer refused to permit the Employee to return to work, and accordingly, when the two year limitation period started to run. As a result, the Court of Appeal held that the limitation issue should be determined at trial after examinations for discovery, and after the Court has an opportunity to hear evidence of the parties’ intentions on the limitation issue.
In this case, the Employee was fortunate that there were no cross-examinations on the affidavits filed in support of the motion to amend the Statement of Claim, as it may have resulted in a different outcome if the Court had evidence regarding when the Employer rejected the request to return to work.
Employees should be aware of the relationship between a disability and wrongful dismissal claim, and ensure that a claim for wrongful dismissal is initiated within two years from the date that the employee knew or ought to have known that he or she has a wrongful dismissal claim against the employer. If there is uncertainty when the limitation period starts to run, legal advice should be obtained to ensure that the employees’ rights are protected.