When and Where: The Importance of Time and Place in Bringing Employment Proceedings

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The legal process is complicated. When you aren’t familiar with it, it’s easy to make mistakes. Some of these mistakes can be very costly. Some mistakes can be fixed. Some cannot, and if you make one of these mistakes, you may see your entire case thrown out. It is absolutely essential, for instance, that you bring your proceeding to the correct forum and within the correct amount of time.

In the recent Ontario Superior Court decision Andrew Scott v. Community Living Temiskaming South (“Andrew Scott”), a plaintiff had his entire case dismissed because he mistakenly commenced the proceeding in the wrong forum and because he did so too late.

The Time for Bringing Proceedings

The Limitations Act, 2002 sets out the two-year limitation period that applies to employment law proceedings. If you bring your claim more than two years after the claim was discovered, the court will have no choice but to dismiss your claim. In Andrew Scott, the plaintiff originally brought a claim for wrongful dismissal before amending it to a claim for constructive dismissal. Where a constructive dismissal arises from a change of position, case law suggests that the limitation period starts to run from the date of the change in position. In Andrew Scott, that change of position occurred on March 27, 2017. The plaintiff, however, brought his first claim on April 4, 2019, and then amended it on January 13, 2020. These dates are 24 months and 33 months, respectively, after the date the limitation period began to run. As a result, both claims fell outside the limitation period and were therefore dismissed.

Mitigation Efforts Irrelevant to Limitation Period

The plaintiff in Andrew Scott argued that the limitation period should have started later because he had remained with the employer in an effort to mitigate his losses in conformity with employment law principles. The Superior Court, however, did not believe this had any effect on when the limitation period began. Justice Koke found that mitigation cannot toll the limitation period as there is no reason a plaintiff could not mitigate his losses and commence an action at the same time.  Mitigation efforts, Justice Koke found, are wholly irrelevant to when a plaintiff discovers their losses and when the limitation period begins to run.

The Forum to Bring Proceedings

In the context of employment law, the proper forum will often depend on whether or not the employee bringing the proceeding is unionized. In Andrew Scott, the plaintiff was a member of a union when bringing his complaint. Notably, he commenced an action in the Ontario Superior Court. As it turns out, this was a significant error on his part. According to the Ontario Labour Relations Act, the resolution of disputes arising under a collective agreement should be provided through arbitration, not the courts.  Courts are not able to hear claims arising under collective agreements. Rather, a unionized employee with a claim against their employer must rely on the grievance process under the collective agreement and cannot turn to the courts for help.

The plaintiff in Andrew Scott, as a unionized employee, should not have turned to the courts for help. His answer lied in arbitration. As a result, Justice Koke found that he had no jurisdiction to hear the plaintiff’s claim, and the claim was dismissed.

The plaintiff may have had a case had he brought his complaint to the correct forum in the correct amount of time. He lost all chances of proving that case, however, when he brought it too late and to the wrong forum.  This case should serve as an important lesson not to delay in bringing a claim, and to ensure you bring it where it must be brought.

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