Court of Appeal Finds Harassment Claims Create Pattern, Not Statute-Barred

Written on behalf of Peter McSherry
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Limitation periods are a crucial part of civil litigation. In many civil disputes, plaintiffs are limited to a set timeframe in which they are entitled to commence a claim against a would-be defendant. Limitation periods are set up in an effort to resolve matters in a reasonable amount of time. In employment law disputes, when an employee feels that an employer’s behaviour is serious enough to warrant damages, it may be difficult to pin down when a certain behaviour started or ended, especially if multiple types of behaviour are alleged. 

A recent decision from the Nova Scotia Court of Appeal provides us with a look at how the courts might view allegations against an employer for various types of harassment in the workplace. In this instance, some of the behaviours fell within the limitation period and some outside of it. While this decision is not binding in Ontario, it is not uncommon for courts to consider decisions of appeal courts in other jurisdictions.


Employee says she was harassed both sexually and non-sexually

In HFX Broadcasting Inc. v. Cochrane, the plaintiff employee began working for the employer in January 2017. She worked as a radio host, and her supervisor was a Program Director. After a year of working for the employer, the employee filed a complaint with in-house counsel alleging harassment by the Program Director and another individual. The employer’s legal team declined to determine whether harassment took place and told the employee that the parties had been reprimanded. The Program Manager continued to manage the employee. 

In June 2018, the employee filed a complaint with the Canadian Human Rights Commission and gave the employer two weeks’ notice to terminate her employment. The employee was subsequently escorted from the premises one day before her scheduled final day of work.


Employee commences action for constructive dismissal 

Two years after the complaint was filed, the employee felt that the Canadian Human Rights Commission had failed to take any meaningful action. She withdrew her complaint and commenced an action in the Supreme Court of Nova Scotia, alleging that she had experienced constructive dismissal

The details of the complaint included allegations of sexual and non-sexual harassment. She further claimed that the employer failed to investigate her previous claims properly and did not protect her from further harassment. The employee alleged that the employer’s decision to terminate her employment one day before she was set to resign equated to being fired. 


Employer says sexual harassment claims are too old to litigate

The employer argued that the sexual harassment claim fell outside of the two-year limitation period and sought a summary judgment to strike those allegations from the claim. The employer was unsuccessful and appealed the decision.

The Court of Appeal had to determine whether the employee’s claim for constructive dismissal was limitation-barred “to the extent it is based upon sexual harassment” and whether the motions judge should have struck that component of the claim. 


Statement of claim did not include sexual harassment

The Court noted that the employee’s statement of claim did not include a tort based on sexual harassment. Instead, the claim was strictly related to constructive dismissal.

The Court summarised constructive dismissals as occuring “when an employer unilaterally makes a fundamental or substantial change to an employee’s employment contract, a change that violates the contract’s terms, the employee may treat the change as constructive dismissal.”

The Court was required to determine whether the employer’s conduct amounted to constructive dismissal. The employer’s Policy Handbook stated that employees were to be free from harassment. The employee’s claim that the employer failed to prevent her from being subjected to such behaviour amounted to a change in her contract. 


Court considers allegations as a whole

The Court found that the sexual harassment allegations should not be considered as a separate claim, but instead, they should be treated as one element of a pattern of harassment that continued up until the employee’s final day with the employer. The Court noted that it is irrelevant that sexual harassment allegations might be considered as a separate complaint under human rights law. 

Therefore, the limitation period was deemed to have not begun until the employee’s last day of employment in August 2018. On this basis, the limitation period would have expired on July 30, 2020, which was after the employee had filed the claim. 

Because this appeal was focused solely on whether or not the sexual harassment aspect of the claim was statute-barred, the question of whether or not constructive dismissal occurred will be heard separately. 


Contact Employment Lawyer Peter A. McSherry if you are the victim of harassment or discrimination at work

Facing harassment or discrimination of any kind in the workplace is a troubling experience, particularly if the harassment is coming from the employer. The power imbalance between employees and employers can also create intimidation. The experienced employment law team at Peter A. McSherry can help level the playing field. We help clients protect their rights and represent them through all steps of the negotiation and settlement process, including trial if needed. We also help employers develop policies to help them ensure their workplaces are as free as possible from such behaviour. If you have questions about a limitation period or constructive dismissal claim, contact us online or by phone at 519-821-5465 to find out how we can help you.