When Can I File a Class Action Suit?
A statute of limitations is applicable to all lawsuit in Ontario including class action. The most common limitation is on the amount of time a plaintiff has to file his or her claim. You MUST file your suit within the time limit. In Ontario, limitation period is governed by the Limitations Act, 2002. The basic limitation period is 2 years for an employment law class action. But the 2 year limitation period doesn’t apply to sexual harassment cases involving assault or sexual assault.
What is A Limitation Period in an Employment Law Class Action?
Limitation periods are defined under the Limitations Act, 2002. A limitation period in an employment law class action sets out a time limit as to when legal proceedings may be commenced by filing a claim.
Basic Limitation Period: In Ontario, the basic limitation period is 2 years. In employment law context, that means that a person must commence an action within two years of when he or she first knew that a claim could be made. In other words, an employee must file a suit within 2 years after he or she was being terminated by the employer, or within 2 years from the last transaction of any other employment laws that gave rise to a cause of action.
In an employment law case, the date when the limitation period starts to run is extremely important. Do note that, however, an employment lawyer, no matter how experience he or she is, is still a human being, and needs time to process your case and to file a statement of claim before the 2-year-limitaiton-period is up. So please allow sufficient time for an employment lawyer to process your case.
I have seen way too many cases where there’s a perfect case with the perfect fact pattern, only to find out that it’s the WRONG timing, i.e. the 2 years is up!!
The Ultimate Limitation Period: The ultimate limitation period is 15 years after the act or omission on which the claim is based took place. Honestly it has little application in an employment law case. It’s hard not to discover the fact that you have been terminated. It’s even harder not to discover that you have been a victim of bullying, discrimination at the workplace. Do note that it is the “act or omission” we are talking about here, not the legal meaning of the act or omission. Mistake of law is no excuse. Not know that you have a case of wrongful dismissal until 5 years from the termination date will not save you from the 2-year-limitation-period.
Exceptions to the 2-Year Limitation Rule
The 2 year limitation period in Ontario doesn’t apply if a claim is based on an assault or sexual assault. This is based on the Common law doctrine that the limitation period does not run during any period in which the Plaintiff (the person suing) was physically or mentally incapable of commencing an action.
In the case of a claim based on assault, the law presumes that the Plaintiff was incapable of commencing an action earlier than they did, with some minor exceptions. In the case of a claim based on sexual assault, the law assumes in all cases that the Plaintiff was incapable of commencing the action before it was commenced.
There’s no time limit for a case of sexual harassment by your ex-boss, ex-colleague. It’s never too late to speak to a lawyer or report the crime to the police, no matter how long the time has passed. Be part of the “Me Too Movement”.
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