tag:blogger.com,1999:blog-7916767120530431852.post612751098706680466..comments2024-03-23T13:03:48.917-04:00Comments on Labour Pains: When Does the Limitation Period Begin for a Wrongful Dismissal Case in Ontario?Sean Bawdenhttp://www.blogger.com/profile/12478582658843470140noreply@blogger.comBlogger1125tag:blogger.com,1999:blog-7916767120530431852.post-86575220090214932822017-04-18T15:54:38.283-04:002017-04-18T15:54:38.283-04:00I agree that the severance decision is untenable. ...I agree that the severance decision is untenable. Bringing an action seeking payment of severance pay before its statutory 'due date' would be, on its face, premature: No actionable harm has occurred until the employer has failed to pay the severance in accordance with the statute. The clock simply can't start running until that failure - and this would remain true *even if* the notice of termination expressly eschewed any entitlement to severance pay.<br /><br />By focusing on when the cause of action could have been 'discovered', without proper analysis of when it *actually arose* (which is a prerequisite to discovery), Justice Munroe almost certainly erred.<br /><br />Pay in lieu of notice is more nuanced, but again, I think that more than cursory discussion of discoverability is out of place. Discoverability is a really important concept where the plaintiff might not reasonably know about the claim immediately when it arises, but using the plaintiff's awareness as the litmus test where a plaintiff might *anticipate* a cause of action before it arises (as is certainly the case for the severance issue here) is misleading.<br /><br />Rather, the important legal question is about whether or not, within the language of the statute, the "injury, loss or damage had occurred" as of specific dates. In the wrongful dismissal context, I agree with you that that's not going to be assessed on the basis of income loss, but rather on the basis of the concept of 'breach'. Whether the breach occurs when the inadequate notice is *given*, or when the inadequate notice *becomes effective*, imho could easily go either way. The Court in Goodwin looked at whether or not a notice of termination can be rescinded by the employer, found that it could be, and concluded that accordingly the contract could not be regarded as breached until the termination became effective. I agree with the logic - if the notice can be rescinded, the Goodwin court's conclusions follow - and there are a number of cases where termination notices are rescinded, modified, re-issued, etc. (And in many ways, I think that's the cleaner analysis, given that in most cases an employer would likely be able to rely on mitigation if it tried to rescind or extend a notice of termination and the employee insisted on the terms of the original termination notice and sued in breach of contract. I think there are much broader problems with the constructive dismissal and mitigation framework, but that's an even longer discussion.)<br /><br />Still, this isn't simple: Imagine a scenario where an employee found a new job to begin the day after the termination notice became effective, and the employer rescinded the notice with inadequate time for the employee to provide his own contractual resignation notice - would that put the employee in a breach of contract if he left for the new job he had accepted in reliance on the termination notice?<br /><br />I would look to the mirror image in cases of employee resignation: If I resign, I'm entitled to resile from that resignation unless there's detrimental reliance on the resignation by the employer. Conversely, if the employer seeks to resile from a termination, an employee should be able to say "no" if the employee has already found another job or has otherwise relied upon the termination. But otherwise, the employer is entitled to resile from its termination - which would result in the Goodwin analysis being appropriate: In a scenario where inadequate working notice is revoked prior to becoming effective, it doesn't seem to me that we can say that any cause of action has arisen at all - thus, until the termination becomes effective, the breach of contract has not yet occurred, and is not actionable.<br /><br />I can see the other angles, and I don't think that the way that the court went on this issue is unjustifiable...but honestly, I'm always sceptical of any result that says to the employee "You should have sued your employer while still working there."Dennis Buchananhttps://www.blogger.com/profile/02338198640943823828noreply@blogger.com