In the recent case of Sosnowsk v. MacEwen Petroleum Inc., the Ontario Court of Appeal confirmed that there must be exceptional factual circumstances in order to extend the deadline for commencing a wrongful dismissal claim.
The Ontario Limitations Act (the “Act”) sets out the timing for commencing a civil action. Section 4 of the Act prohibits any claim from being commenced after two years from the date on which the claim was “discovered”. Section 5 of the Act states that a claim is discovered either when the person knew or a reasonable person with the abilities and in the circumstances of the person with the claim ought to have known:
i. “that the injury, loss, or damage had occurred;
ii. that the injury, loss, or damage was caused by or contributed to by an act or omission;
iii. that the act or omission was that of the person against whom the claim is made; and
iv. that, having regard to the nature of the injury, loss, or damage, a proceeding would be an appropriate means to seek to remedy it.”
Generally, an employee has two years after the termination of their employment to commence an action against their former employer for wrongful dismissal. In most cases, an employee is deemed to have “discovered” a cause of action against their former employer when they were given notice of termination.
The appellant, Leslie Sosnowski (“Sosnowski”), worked as a fuel truck driver for the respondent, MacEwan Petroleum Inc. (“MacEwen”). In November 2009, MacEwen became aware that one of its drivers was involved in the theft of its fuel. Following an internal investigation, it was revealed that Sosnowski had committed several acts of theft. As a result, MacEwen terminated his employment for cause.
A subsequent investigation by the Ontario Provincial Police resulted in Sosnowski being criminally charged and ultimately convicted of three counts of theft and three counts of fraud. Sosnowski appealed his convictions to the Court of Appeal of Ontario, and in November 2014, he was acquitted of all charges.
Following his acquittal, Sosnowski commenced an action for wrongful dismissal against MacEwen in July 2015. This was more than five years after his employment was terminated for cause and more than three years after the limitation period had expired.
MacEwen brought an action for summary judgment on the basis that the Act barred Sosnowski from commencing a civil action against them for wrongful dismissal more than two years after the termination of his employment.
Sosnowski argued that until the criminal proceedings were completed, he did not know whether he had a viable claim. If he was convicted of the criminal charges, his claim for wrongful dismissal would have very little chance of success because it would have been proven beyond a reasonable doubt that he stole from MacEwen.
The motion judge agreed with MacEwen that the Act barred Sosnowski from commencing a civil action against them for wrongful dismissal. The judge held that Sosnowski knew, or with reasonable diligence ought to have known, that he had a claim against MacEwen at the time of his dismissal in November 2009.
Sosnowski appealed the motion judge’s decision.
The appeal was dismissed.
The appeal hinged on whether Sosnowski knew that it was appropriate, for the purposes of section 5 of the Act, to commence a civil proceeding. The Court noted that the determination of whether a civil proceeding is an appropriate means to seek to remedy an injury, loss, or damage “depends upon the specific factual and/or statutory setting of each case.” Having an ongoing criminal proceeding does not stop the running of the limitation period.
The Court concluded that appropriate means “whether it is legally appropriate to bring an action” and “does not include an evaluation of whether a civil proceeding will succeed.”
The Court rejected Sosnowksi’s argument that he should have been permitted to wait until his criminal proceedings had concluded so that he could evaluate his chances of success in a civil action. Sosnowski argued that litigation is an expensive and risky proposition and he should not be forced to commence an action until he knew he had a chance of success. The Court noted that this argument was precisely what plaintiffs were not permitted to do.
The Court concluded that to allow this approach “would introduce a measure of uncertainty that is contrary to the legislature’s intention in enacting the current Limitations Act.”
This decision is helpful for employers as it reduces the potential of lingering liability with regards to wrongful dismissal claims by upholding the certainty and consistency in the law of limitation periods.
However, it poses an intractable dilemma for employees who may be forced to concurrently incur the expense of a criminal trial as well as the expense of commencing a civil proceeding. As the Sosnowski case illustrates, an employee who is ultimately acquitted of all criminal charges arising from their dismissal may be statute-barred from subsequently bringing a claim against their employer if the limitation period has expired.
By Anique Dublin and Stuart Rudner
 Limitations Act, 2002 s.5(1)(a)-(b)
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