Fired? Call Your Lawyer, Quickly!
A recent Ontario Superior Court case illustrates why one should not wait to seek legal advice especially in situations of wrongful dismissal.
Mr. Bailey, the plaintiff, worked for the same company for 43 years before he received notice. The termination provided for two years working notice, all of which Mr. Bailey faithfully served. However, during those two years, he became displeased and eight months after his last day, he commenced a claim for wrongful dismissal, severance pay, intentional infliction of mental distress and human rights violations.
The defendant employer moved to strike the claim, arguing that the claim was statute barred because of the expiry of the limitation period. At law, a claim must be commenced two years from when the cause of action occurred or was discovered. According to the defendant, the two years had run its course, while Mr. Bailey faithfully worked out his notice period.
The employer prevailed. The judge ruled that: "In a breach of contract, the cause of action arises when the contract was breached. For the purposes of a wrongful dismissal action, the employment contract is breached when the employer dismisses the employee without reasonable notice."
In other words, Mr. Bailey faithfully worked while the clock on his limitation period ran. By waiting to seek legal advice until after his last day of work, he lost the right to bring the claim at all. Fortunately, for Mr. Bailey there was a small consolation that he could continue with his claims for intentional infliction of mental distress and human rights violations because the wrongful conduct he complained of had continued throughout the notice period. As such, it was not barred by the expiry of the limitation period.
The Lesson: Seek legal advice and seek it early. Mr. Bailey was in the unpleasant situation where he would have had to commence his claim either on his last day of work or while still working. However, failure to get advice timely and act on it, likely cost him. Mr. Bailey was 64 years old and had worked for the same company for 43 years with good evaluations. It is likely that his notice period would have exceeded 24 months. The failure to act promptly in this case was costly.
Bailey v Milo-Food & Agricultural Infrastructure & Services Inc., 2017 ONSC 1789 https://www.canlii.org/en/on/onsc/doc/2017/2017onsc1789/2017onsc1789.pdf
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