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Published by Sean Bawden of Kelly Santini LLP.
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Wednesday, 3 April 2013

The Waiting is the Hardest Part

Tom Petty once famously observed that "the waiting is the hardest part." (See video.) That observation raises the question, how long does an employee have to wait before he can assume that his old employer will not take him back? At least more than one day it would appear.

In a short endorsement released by the Court of Appeal for Ontario earlier today, Spiers v. The Manufacturers Life Insurance Company (Manulife Financial), 2013 ONCA 200 (CanLII), the Court of Appeal allowed an appeal from a decision dismissing a request to amend a Statement of Claim to plead wrongful dismissal on the basis of the expiry of the applicable limitation period.


As is set out in the court’s (Blair, Tulloch and Lauwers JJ.A.) reasons
The plaintiff employee Mr. Speirs was employed by Canon Canada Inc. for approximately 19 years. At some point in time in May 2006, he stopped coming to work and asserted a claim for disability benefits from Canon. Short term disability benefits were paid for seven and a half weeks but not thereafter.
In May 2012, Mr. Speirs brought a motion to amend his statement of claim to assert a claim for wrongful dismissal. The claim is based on the position Mr. Speirs took in January 2010, and conveyed to Canon in his lawyer’s letter dated January 13, 2010, that he was able to and wished to return to work. Canon did not respond. Mr. Speirs therefore asserts that he has been constructively dismissed.
On the motion to amend, Canon argued that the wrongful dismissal claim was statute barred because the motion was brought more than two years after Mr. Speirs knew or ought to have known that he had a claim for wrongful dismissal: see the Limitation Act 2002, S.O. c. 34, sch. B, s. 5. [Sic: Limitations Act] The motion judge (the Honourable Justice Michael A. Penny) agreed and refused to permit the amendment. He found that “by his own admission and by the clear language of the letter written to Canon on his behalf”, Mr. Speirs knew or ought to have known “no later than January 13, 2010” that he had a claim for wrongful dismissal.


On appeal to the Court of Appeal, Justice Penny’s decision was overturned. In a unanimous, unauthored decision the court held that:
It is not tenable that merely by sending a letter saying he was prepared to go back to work, Mr. Spiers would know that Canon was refusing to take him back. Some response from Canon was required either expressly or by inference. Here, there is nothing on the record to make that link. (Para. 6) [Emphasis added.]

Because the motion judge failed to turn his mind to the question of how much time should have been afforded for that response to not come, the court concluded that it was an error for Justice Penny to conclude that Mr. Spiers knew or ought to have known that he had a claim for constructive dismissal within the time frame established by the Limitations Act.


On the issue of law I agree with the Court of Appeal. Without any response from his employer, how could Mr. Speirs have known that his employer would not have taken him back?

Whether Mr. Speirs’ claim will be ultimately amended or whether his case will be successful is yet to be seen, and in fact may never be seen.

What the case stands for, in this author’s opinion, is only the proposition that the limitation period will not begin to run until a reasonable period has expired after the sending of a letter requiring a response. How long that period has to be before an employee can reasonably infer that he has been constructively dismissed is left unanswered by this decision.

Perhaps the question will yet be answered…

As always, everyone’s situation is different.  The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP, and part-time professor at Algonquin College teaching Trial Advocacy for Paralegals. He is a trustee of the County of Carleton Law Association for 2013.


  1. on the other hand, isn't it a common sense that the employee, knowing he was officially terminated, offers to go back to work and the employer's staying silence is an implied "no" and can be deemed as a refusal "by influence"? I mean if I was the employee, I would not so naive to expect the employer to respond. -- Just a thought. Joy

  2. But that's the thing, he had not been officially terminated, he was off on leave. He then signaled to his employer that he was ready to go back to work, and the employer did not respond to that. The question raised by this case is, what's the date upon which the employee can reasonably infer that the employer will not take him back, such that he can commence a case for constructive dismissal?