In a recent Ontario Court of Appeal decision, the court explained the “appropriate means” provision in the Limitations Act in a case where a dismissed employee waited six years before commencing an action for wrongful dismissal against his former employer.
The employee began working as a fuel delivery truck driver for the employer in 1996. In November 2009, the employer received an anonymous tip that one of its drivers was involved in the theft of its fuel. It began an internal investigation that ultimately found that the employee had committed several acts of theft.
On November 9, 2009, the employer terminated the employee for cause. That day, the employee retained a lawyer who requested further details from the employer regarding the termination.
On May 6, 2010, the employee retained a second lawyer who wrote to the employer in May and June of 2010, asserting that the employee had been wrongfully dismissed and was entitled to damages, though the employee did not commence an action for wrongful dismissal at that time.
The employee was then criminally charged on July 7, 2010, and convicted on August 15, 2011, of three counts of theft and three counts of fraud. He appealed his convictions, and the Court of Appeal acquitted him on all counts on November 26, 2014.
The employee then commenced an action for wrongful dismissal against the employer on July 24, 2015.
The employer brought a motion for summary judgment on the basis that the Limitations Act barred the employee’s action. The motion hinged on whether the employee knew that it was appropriate, for the purposes of s. 5(1)(a)(iv) of the Limitations Act, to commence a civil proceeding.
Lower Court Decision
The motion judge rejected the argument that the employee did not know it was appropriate to commence his action against the employer before the criminal proceedings had concluded. She found that the employee knew, or with reasonable diligence ought to have known, that he had a claim against the employer at the time of his dismissal on November 9, 2009.
As a result, the motion judge rejected the employee’s argument and dismissed the action.
The employee appealed and submitted that until the criminal proceedings were completed, he did not know if he had a viable claim. He stated that if he had ultimately been convicted, his claim for wrongful dismissal would have had little chance of success because it would have been proven beyond a reasonable doubt that he had committed multiple thefts against his employer.
Therefore, according to the employee, it made sense to await the outcome of the criminal proceeding before deciding whether to commence his action.
Court of Appeal Decision
The court explained that at issue was the interpretation of s. 5(1)(a)(iv) of the Limitations Act, which contains the so-called appropriate means provision. The subsection provides that a claim is not discovered until the day on which a putative plaintiff first knows that a proceeding would be anappropriatemeans to seek to remedy an injury, loss, or damage.
The court explained that the use of the word “appropriate” means whether it is legallyappropriate to bring an action and does not include an evaluation of whether a civil proceeding will succeed. The court explained:
“The [employee]’s principal submission is that he should have been permitted to wait until the criminal proceedings concluded so that he could evaluate his chances of success in litigation. He argues that litigation is an expensive and risky proposition, and he should not have been forced to commence a civil proceeding until he knew that he had a chance of success. This argument, of course, is precisely what this court […] said a plaintiff is not permitted to do.”
As a result, the court dismissed the employee’s appeal.
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