Limitation Periods Are At Risk When Waiting Until The Last Minute
October 1, 2021
One of the most important reasons we recommend working with experienced lawyers when dealing with matters of civil litigation is that those inexperienced with the law might find themselves missing critical deadlines such as limitation periods. The Alberta Court of Queens Bench recently issued a decision in a matter that saw the applicant asking for an extension of the limitation period after missing a deadline. The decision is a great example of how the courts won’t allow limitation periods to be extended even if it is sympathetic to the reasons why it was missed.
Employer looks to appeal employment standards decision
The matter arose after an Employment Standards Officer issued a ruling in favour of an employee who had been laid off from the employee, who owns and operates a number of restaurants. The letter containing the decision stated that all appeals must be made in writing within 21 days after the date a party is served with a notice from Employment Standards. The decision was issued on November 16, 2020. On November 17, the employer emailed the Employment Standards Officer to explain that their HR Lead (“AS”) would be filing the appeal.
Appeal is filed late
It wasn’t until December 8, 2020, exactly 21 days following the issuing of the decision, that AS reached back out to the Employment Standards Officer. She told the officer she had been trying to set up an account, which is needed to file the appeal, but that she was having difficulty doing so. She asked if she could file it in another manner, such as via fax or email, and the officer responded that the directions in the decision contain everything needed to do so. AS replied that the instructions were not helpful.
Throughout the day of December 8, AS communicated with other people from Employment Standards and was eventually told that appeals have to be received before the 21st day following a decision and that the date had already passed (one day earlier).
December 8 came and went and the employer was not able to file an appeal. They asked for an extension on December 14, but were denied. The employer argued that the Registrar’s decision to refuse to hear the appeal was incorrect or unreasonable and should have been allowed.
Should the appeal have been allowed?
The court noted that COVID-19 played a role in the delay, with the employer stating that had the office of the Registrar been open, the appeal could have been hand-delivered. Nevertheless, COVID-19 was a factor, and as such the Registrar provided alternative methods to file appeals. The court found that the direction provided were clear.
Instead, the court said the case was really about leaving things until the last moment, and that had the directions been read carefully, an appeal could have been filed in time. Furthermore, AS only reached out to the office on the 8th of December. By this time the date to file an appeal had already come and gone.
The court was sympathetic with the employer’s position, but could not find any errors that would warrant the original decision being overturned. The case is a great example of how important it is to act prudently when involved in legal disputes and not to leave things until the last minute, at which time delays can have a significant impact.
The Advocacy Team at HMC Lawyers has litigated successfully on behalf of individual and corporate clients in all manner of commercial and civil disputes, against some of Canada’s largest national law firms.
If you would like to proactively address a potential dispute, contact us online or call 1-800-480-3534 to make an appointment. We advise clients in Calgary, throughout the province of Alberta, and across Western Canada.