Old Evidence Not Barred By Limitations In Constructive Dismissal

By: Joel Fairbrother

Published: 21 November 2022

HFX Broadcasting Inc. v. Cochrane, 2022 NSCA 67 is a new Nova Scotia Court of Appeal decision where an employer tried unsuccessfully to have old evidence of harassment disallowed in a constructive dismissal case, on the basis that some of the alleged harassment occurred more than 2 years prior to the lawsuit.

This case hails from the Nova Scotia Court of Appeal, but it could be used as a persuasive authority in Alberta as well.


The following are the pertinent facts found by the Court of Appeal:

  • The plaintiff employee sued her employer for constructive dismissal, alleging a variety of harassment leading to a toxic work environment
  • The plaintiff alleged sexual harassment which occurred more than 2 years prior to the filing of her claim, and non-sexual harassment which continued up to the date of her resignation
  • The employer brought an application seeking to have the claim dismissed, and/or to have the evidence of more than 2 years prior to filing the claim disallowed (a limitations argument)
  • The employers application failed, so the employer appealed to the Court of Appeal

Analysis / Conclusion

The Court of Appeal rejected the employer’s argument.  The reasoning was that the allegations involved harassment that continued from years ago up until the date of alleged “constructive dismissal”, so they were all part of the factual background of the alleged constructive dismissal:

[25] The cumulative factual analysis cannot be thwarted by cleaving away relevant evidence under the Limitations of Actions Act. The sexual harassment allegations cannot be “hived off” for separate treatment under the Limitations of Actions Act, as HFX Broadcasting urges.

[26] Consequently, Ms. Cochrane’s limitations period did not begin to run until the last day of her employment – August 8, 2018. Her two-year limitation period had not expired on July 30, 2020, when she filed the Notice of Action and Statement of Claim.

In the result, when this case is ultimately decided by the lower courts, the lower courts will be allowed to take into account the whole period of alleged sexual and non-sexual harassment, including events which occurred more than 2 years prior to the filing of the claim.

My Take

The result in this case is not surprising when considering the nature of a constructive dismissal claim, because the factual underpinnings of a constructive dismissal often occur over a period of time.

However, the result in this case does not mean the employer has lost the case.  Ultimately, the employee may still have difficulty establishing constructive dismissal, because:

  • The employee is the one with the burden of establishing that constructive dismissal occurred. If she fails, its just a resignation with no severance;
  • The employer can still argue that even if the circumstances that could give rise to constructive dismissal did occur, the employee did not claim constructive dismissal within a “reasonable time” of those circumstances arising, which is a requirement in any constructive dismissal case.  This is superficially similar to the argument the employer used here, but it is much stronger.

Bow River Law provides these regular legal blog articles for the purposes of legal education and research for the public and the legal profession.  These articles should be considered general information and not legal advice.  If you have a legal problem, you should speak to a lawyer directly.

Bow River Law is a team of knowledgeable, skilled and experienced lawyers handling employment law, human rights (discrimination) and labour law matters.  Bow River Law is based in Calgary but we are Alberta’s Workforce Lawyers.