Waiting too long to sue: Court dismisses pandemic-related claim

Exclusive to Canadian HR Reporter from Rudner Law.

COVID-19 vaccine mandates may feel like a distant memory, but some of their legal aftershocks are still being felt.

Many employers assume that any dismissal connected to those mandates, now more than two years old, would be well beyond the window for a lawsuit.

But what happens if an employee claims they didn’t understand their rights until much later? Can old pandemic-era claims suddenly resurface?

In the recent decision of Pascuet v. Sky Service, which involved an employee being dismissed for refusing to comply with a COVID-19 vaccination policy, the court shut that door firmly, ruling that a wrongful dismissal claim brought more than two years after termination was out of time under the Limitations Act, 2002, and that misunderstanding the law is not an excuse for delay.

While HR professionals should understand that there are some situations in which a claim can be brought more than two years after the events giving rise to the claim, the Pascuet decision reaffirms that, in most cases, limitation periods provide finality and closure for employers.

Limitation periods to claims

Most provinces in Canada have a limitation period of two years, which means that a person generally has two years from the date they discovered, or reasonably should have discovered, their claim to commence a legal proceeding. In Ontario, this limitation period is governed by the  Limitations Act, 2002.

I previously wrote about the “limits” of limitation periods. Even where two years have passed since an employee was dismissed, that does not necessarily mean that the time limit for the claim has expired.

One of those limits is the issue of discoverability. The two-year limitation period does not begin to run until “the claim was discovered”.

A claim is “discovered” when the plaintiff knows (or reasonably ought to know) that:

1. They suffered a loss
2. The loss was caused or contributed to by an act or omission
3. The potential defendant is the person/company who made the act or omission
4. A lawsuit would be an appropriate way to seek a remedy.

There is also a presumption that a claim is discovered on the date of the act itself (here, the termination) unless the plaintiff can prove otherwise.

If a plaintiff can demonstrate that they did not know or could not have reasonably known of the four factors listed above until a later date, then the claim can be brought more than two years after the termination occurred.

The facts in Pascuet

Javier Pascuet was employed as an airport worker for Sky Service F.B.O. until Jan. 4, 2022, when his employment was terminated for cause, due to his failure to comply with the company’s vaccination policy. Like many employers during the pandemic, Skyservice implemented policies in response to government vaccination mandates.

Pascuet believed that his dismissal was connected to federal rules and that the government of Canada, rather than his employer, had dismissed him. Pascuet first filed a claim in the Federal Court, which dismissed his case in June 2024, stating that any wrongful dismissal action should be brought in a provincial Superior Court. Only then, more than two-and-a-half years after his dismissal, did he issue a statement of claim in the Ontario Superior Court.

Skyservice brought a motion for summary judgment, arguing that the claim was out of time because it was filed after the two-year limitation period expired.

Was the action statute-barred?

The sole question for the court to decide was whether the action was statute-barred.

The court did not address the merits of whether the termination was justified or if his employer had just cause to dismiss him as a result of his non-compliance with the vaccination rules.

Pascuet argued that he did not “discover” his claim until June 2024, when the Federal Court told him he could sue in provincial Superior Court, and that the appropriate defendant would be Skyservice, rather than the federal government.

Court grants summary judgment

The court rejected all of Pascuet’s arguments and granted summary judgment for Skyservice.

The court held that the limitation clock began on Jan. 4, 2022, the day Pascuet was told that he was dismissed from his employment. On that date, he clearly knew he had been dismissed, knew who his employer was, and knew he had suffered a loss.

The court emphasized that a failure to understand the legal significance of known facts does not delay the limitation period. Suing in the wrong court or misunderstanding who is legally responsible does not “pause the clock.”

Because the claim was filed more than two years after termination, it was statute-barred and dismissed in its entirety.

Takeaways for HR

For HR professionals and employers, Pascuet serves as a reminder that, in most cases, employment disputes are effectively closed once the two-year limitation period has passed. A former employee’s misunderstanding of the law, or confusion about the correct party to name in a claim, does not reset the clock or extend their time to sue.

Although this decision represents a clear win for employers, it is likely that former employees will continue to test the boundaries of limitation periods, raising new arguments to try to gain extra time to launch claims.

Employers should remain vigilant and consult legal counsel when dealing with potentially late claims.

Alex Minkin is an associate lawyer at Rudner Law in Toronto. He can be reached at (416) 864-8500 or [email protected].