Case: Sosnowski v MacEwen Petroleum, 2019 ONCA 1005

Keywords: employment law, wrongful dismissal; civil procedure, limitation periods; appropriate means s. 5(1)(a)(iv) of the Limitations Act, 2002, S.O. 2002, c 24, Schedule B; Winmill v. Woodstock (Police Services Board), 2017 ONCA 962. 

Synopsis:

The Appellant, Mr. Sosnowski, is dismissed with cause for alleged theft. In criminal proceedings, the Appellant is convicted of three counts of theft and three counts of fraud. On appeal, the Appellant is acquitted of all charges. After his acquittal (six years after his initial dismissal), Mr. and Mrs. Sosnowski commence an action for wrongful dismissal against the Respondent, MacEwan Petroleum. The Respondent brings a successful motion for summary judgment on the basis that the Limitations Act, 2002 bars their action.

The Appellants (Mr. and Mrs. Sosnowski) advance a single ground of appeal: whether the Motion Judge erred in finding they “knew that it was appropriate to commence a civil proceeding pursuant to s. 5(1)(a)(iv) of the Limitations Act, 2002.” The Court of Appeal dismisses the appeal, stating the Appellants “knew, or with reasonable diligence ought to have known, that [they] had a claim against MacEwen at the time of [Mr. Sosnowski’s] dismissal.”

Importance:

The Court of Appeal set limits on how far the “appropriate means” provision can be expanded. The Court concluded that only in specific factual settings can the limitation period be prolonged; and having an on-going criminal proceeding does not stop the running of the limitations period.

In order to come to this decision, the Court considered three factors:

  1. The origins of the Limitations Act;
  2. The jurisprudence of the “means provision”; and
  3. The Court’s decision in Winmill v. Woodstock (Police Services Board), 2017 ONCA 962.

Limitations Act:

The Court focused on ss. 4 and 5 of the Limitations Act. Section 4 establishes a basic limitation period of two years:

4 Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. [Emphasis added]

Section 5 provides an exception:

5 (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(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; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a). [Emphasis added].

Jurisprudence of section 5 “means provision”

The Court’s main determinative measure of the appeal was the analysis of the Court’s jurisprudence to interpret s. 5(1)(a)(iv). Citing para. 46 in Nasr Hospitality Services Inc. v Intact Insurance, 2018 ONCA 725, 142 O.R. (3d) 561, the Court of Appeal noted that, to determine whether a proceeding is an appropriate means to seek a remedy for loss, damage, or injury, “depends upon the specific factual and/or statutory setting of each case”. (See para.16).

The court also observed two circumstances that most often delay the date of a claim. The first is when a plaintiff has relied on the defendant’s expertise and knowledge, “especially where the defendant took steps to ameliorate the loss”. (See para. 17). The second situation is where an alternative dispute resolution process “offers and adequate remedy, and it has not yet been completed”. (See para. 17; citing Nasr at para. 50).

Citing para. 34 in Markel Insurance Company of Canada v. ING Insurance Company of Canada, 2012 ONCA 218, 109 O.R. (3d) 652, the Court provided guidance on the meaning of the term “appropriate” in relation to s. 5(1)(a)(iv). Specifically, the Court clarified that the word “appropriate” refers to whether it is “legally appropriate to bring an action” and not the evaluation of whether a civil proceeding will succeed. (See para. 19).

Winmill v. Woodstock

The Appellants argued this case was analogous to Winmill v. Woodstock (Police Services Board), 2017 ONCA 962, 138 O.R. (3d) 641, a wrongful dismissal case in which the appellant could not determine whether it was appropriate to bring an action until the outcome of his criminal proceedings was known.

The Court of Appeal distinguished Winmill on the basis it involved an attempt to sue the police pending resolution of criminal proceedings, a different scenario from the Appellants’ case against Mr. Sosnowski’s employer.

In conclusion, the Court determined that having both an on-going criminal and civil proceeding is not exceptional enough to prolong the general two-year limitation period in this case. (See para. 30).

As a result, the Court confirmed the Appellants’ action for wrongful dismissal was statute-barred.

Counsel for the Appellant: Gustavo Camelino (Camelino Galessiere LLP, Toronto)

Counsel for the Respondent: Porter Heffernan and Joël Rocque (Emond Harnden LLP, Ottawa)

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