Written on behalf of Peter McSherry
Every legal claim has a time period or “limitation period” within which the claim must be filed. If this time clock is not met, the lawsuit will be dismissed. The employer need not show prejudice or some inability to defend the claim due to the passing of time.
The general rule for wrongful dismissal claims or human rights claims arising from termination is that the time clock starts when the claim is “discovered”. For most employment cases, that event will be clear when the employer delivers a termination letter.
Wrongful Dismissal as Opposed to Severance Pay
In one recent case, the employer advised the employee that he was to be terminated 2 years into the future. As the notice of termination was clear cut, the limitation clock began on that date for the wrongful dismissal claim based on the obligation to give fair notice of termination.
However, the Court of Appeal determined that the claim for severance pay under the Employment Standards Act did not arise until the employment relationship was concluded and not on the date the termination letter was delivered.
The claim also argued for damages for emotional distress due to an abusive work environment. This claim was allowed to proceed as it was not based on termination but rather focused on continual wrongdoing to the final date of actual employment.
Human Rights Conundrum
On the same subject, but not raised in this case, the limitation clock for a human rights violation under the Human Rights Code is 12 months. However, the employee can also sue civilly for a human rights violation with a companion action in which case the limitation period is 2 years.
Although not argued in this case, if the companion action is struck as out of time on a preliminary motion, presumably the human rights case would also fail, given there would no longer be a “tag-along” action to support this claim as is required.
Time is Ticking
It is clear that this subject is entirely confusing and not guided by logic. Get advice and understand your rights. Do not your claim evaporate by the passing of time. Understand what rights you have even when the apparent time clock has seemingly ticked.
Contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation
 One week for each year of employment to a cap of 26 weeks where the employment is longer than 5 years and the payroll exceeds $2.5 million.