Two recent decisions from Ontario highlight that unlike fine wine, wrongful dismissal claims do not get better with age. The Superior Court decision of Kennedy v. RBC, and the Court of Appeal decision of Bailey v. Milo-Food & Agricultural Infrastructure & Services Inc, highlight that limitation periods can be live issues where employees engage in protracted pre-litigation negotiations or are provided a long period of working notice. These decisions re-affirm the general rule that once proper notice of an employee’s termination is given, the limitation clock starts to run.
In Kennedy, the defendant brought a summary judgment motion to dismiss the plaintiff’s action as limitation barred. The plaintiff had been an employee of Royal Bank of Canada in Toronto. She moved to work at a Royal Bank in Trinidad and Tobago. For reasons that are unclear, sometime prior to November 27, 2009, the plaintiff resigned from the company. She subsequently retained counsel and attempted to rescind her resignation. On December 17, 2009, RBC determined that the employment relationship was irreparably damaged and advised that they would be offering her a severance package. What followed was several months of back and forth negotiations between lawyers for the parties. Eventually, no settlement was reached and the plaintiff issued a claim sometime after May 26, 2012.
The plaintiff attempted to rely on s. 5(1)(b) of the Limitations Act to claim she had not “discovered” her full claim until July or November 2010, when certain run-off payments from RBC were not received. Nakatsuru J. disagreed. The correspondence between the parties made it abundantly clear that by May 26, 2010, the plaintiff was aware of her claims and was explicitly threatening litigation. In finding that the plaintiff’s claim was limitation barred, the judge outlined several basic principles:
- Generally speaking, a cause of action in contract arises when the alleged breach occurs;
- In wrongful dismissal claims, the breach occurs when insufficient notice is provided upon termination;
- A plaintiff does not need to know the full extent of the damages suffered, but merely that they are aware some loss occurred due to the defendant’s actions;
- When addressing the issue of discoverability, the test is objective. It requires a determination of when a reasonable person in the plaintiff’s position with her abilities and circumstances would have been alerted to the elements of the claim; and
- Engaging in negotiations to extract a tactical advantage from a party does not stop the limitation clock.
Nakatsuru J. also noted that the plaintiff was represented by counsel prior to her dismissal from RBC. This was far removed from the situation where an unsophisticated lawyer-less ex-employee was strong along by her employer and then failed to commence litigation in a timely fashion. Accordingly, the plaintiff missed the limitation period. Her clam was dismissed.
A similar result was confirmed in Bailey by the Ontario Court of Appeal. In that case, the plaintiff was advised on March 7, 2013 that his position was no longer sustainable. On March 18, 2013, he was given two years of working notice ending on March 22, 2015. He worked until that date and then commenced his claim on December 21, 2015. On a motion for summary judgment, the judge found that the limitation period began to run on the day he was provided notice, March 18, 2013, not the last day he worked. The Court of Appeal confirmed that this was the correct approach to take.
The take away from these decisions is that both employers and employees should be aware of when the notice of termination was given. If the notice is clear and unequivocal, the clock starts to run. Employees who wait too long may find themselves shut out of an otherwise meritorious claim. Similarly, employers should be cognizant that an employee’s attempt to enter into protracted settlement negotiations does not stop the limitation clock. As long as the employer does not take steps that might support a discoverability argument under section 5(1)(b) of the Limitations Act, this may be a strong defence to raise.
The decisions can be found at the following links: Bailey v. Milo-Food, 2017 ONCA 1004 and RBC v. Kennedy 2018 ONSC 2894.
As the progeny of Canadian diplomats, Devan grew up in five different countries before returning to Canada. It was somewhere between Frankfurt and Vienna where Devan first learned to ride a bicycle. He is now a cycling fanatic: Devan is also the firm’s resident employment law fanatic. Got an employment practices liability policy question? Devan has your answers.