Tuesday, March 5, 2013

Don't Wait: The Dangers of Delay

If you have a legal claim to make against your employer, there are plenty of good practical reasons to seek legal advice promptly.  Aside from the obvious, being that - generally - the sooner you make your claim, the sooner you get paid on it (assuming you're successful), there's also the reality that evidence deteriorates with time.  Witness memories fade and documents are lost or destroyed, for example.  And, if your employer reorganizes or becomes insolvent, it may become difficult or even impossible to collect your full entitlements.

Then there are tactical matters - in some cases, especially with recent changes to the Rules of Civil Procedure, a dismissed employee might be able to get into Court before the notice period has expired, and I have not yet seen an Ontario Court discount the notice period for the prospect of future mitigation.  In many cases, benefit continuation is an issue, but few employers discontinue benefits within the statutory notice period, so I like to use that time to negotiate further benefit continuation.

There are tactical considerations running the other way, too, but none of them should cause you to delay seeking legal advice for one simple reason, the most important of all:


We all know the meaning of the phrase 'statute of limitations' from American legal dramas.  In Ontario, most civil actions are governed by the Limitations Act, 2002, which generally prevents an action from being commenced after the second anniversary of the date the cause of action arose and was 'discoverable'.  There are exceptions, and nuances in when the clock starts, but as a generality, what a potential plaintiff should take from that is:  If you think you might have a claim against somebody, get legal advice as soon as possible.

And it's more complicated, because a dismissed employee may have more than one (or different) avenues of recourse, with different timeframes.  Going before the HRTO, for example, requires an Application to be filed within one year of the incident (or, the last incident in a pattern, as the case may be).

Not all avenues are suitable or preferable for any given case, and choosing one often means you can't pursue another afterwards, so talk to a lawyer before choosing one.  And do it sooner than later, because sometimes the best option is the one that expires first.

Limitations periods are strictly enforced.  They aren't relieved against lightly.

And what's more, even with something which should be as black-and-white as wrongful dismissal, it may not be so clear:  When did the cause of action arise?  The date of dismissal, of course.  Or perhaps the date that notice of dismissal was given?  Or maybe the date at which pay continuance stopped?  Or, in a case of constructive dismissal, could it be the date that the problems in the workplace arose that eventually drove you out?

Showing up on your lawyer's doorstep the day before the limitations period expires is not exactly practical, either.  Yes, there are sometimes things that can be done on short notice, but I don't always take on files under such circumstances, and never without a hefty retainer paid by bank draft or certified cheque.  The normal process involves negotiations, which take time.  Most wrongful dismissal matters are resolved without ever needing to incur the expense associated with commencing litigation.

The bottom line is this:  There is almost never a good reason to need to fight about limitations periods.  A plaintiff should assume the earliest possible limitations date, and start the process well in advance of it.  (The other take-away here, however, is that because these things are nuanced, you shouldn't be stopped from seeking legal advice simply because of delay.  Don't assume that you're out of options until your lawyer tells you so.)


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

1 comment:

  1. "Witness memories fade and documents are lost or destroyed." Employees should never hesitate to report and incident and seek help should something happen to them on the job. The sooner an incident is reported, the sooner it can be resolved so that both the employee and the company can return to normal working conditions.