Discoverability, Due Diligence, and the Impact of the Covid-Adjusted Limitation Period

In McAuley v. Canada Post Corporation, 2021 ONSC 4528 (Ont. S.C.J.)., Justice Boswell clarified the rules of discoverability, due diligence, and the impact of the suspension of all limitation periods ordered in the midst of the Covid-19 pandemic. In a motion to amend a claim to add additional parties past the expiry of the presumed date of discovery, Boswell J. ruled in favour of the opposing parties, who argued that the plaintiff had failed to act with due diligence to discover the claim against them. When addressing the Covid-adjusted limitation period, which suspended all limitation periods from March 16, 2020 to September 14, 2020, Justice Boswell stated it simply: “those days do not get counted in the calculation of the limitation period”.

The plaintiff in this action suffered a broken ankle after a slip and fall on a municipal sidewalk in Huntsville in December 2017. The sidewalk was adjacent to a Canada Post Corporation (“CPC”) building. The plaintiff initially commenced an action against the municipality only in April 2018.  Immediately following the fall, it had been brought to the plaintiff’s attention that an eavestrough on the side of the CPC building was not properly maintained. Photographs of the faulty eavestrough were taken by the plaintiff’s wife around that time; however, the plaintiff failed to mention this to his counsel until November 2018.  Thereafter, CPC was put on notice and the plaintiff was advised of the use of a property manager for the premises, JLL. By early February 2019, plaintiff’s counsel was advised that JLL had subcontracted its tasks to Heritage Property Services (“Heritage”), who had retained Always Handy Property Management Ltd. (“Always Handy”) to act as the winter maintenance contractor.

On March 6, 2019, the plaintiff commenced a second action against CPC. The municipality and Heritage were added as third parties, and Always Handy was added as a fourth party, along with JLL. Following documentary disclosure between January 10 and March 13, 2020, the plaintiff sought to amend the claim to add the municipality, JLL, Heritage, and Always Handy as defendants to the main action. The plaintiff claimed it was not until that time that he was alerted to the contractual obligations of the third and fourth parties. The motion was initiated on January 28, 2021, and was opposed by both Heritage and Always Handy on the basis that the limitation period had expired.

In this case, the court found that the actual date of discovery was when the plaintiff’s lawyer was advised of the involvement of Heritage and Always Handy in February 2019. It was further determined that the plaintiff’s failure to notify his counsel of the faulty eavestrough until 11 months after his injury amounted to a lack of due diligence. The court found that a reasonable person in the plaintiff’s circumstances would have provided this information soon after retaining counsel in early 2018. Had the plaintiff done so, the chain of events would have led to a discovery of the claim against Heritage and Always Handy by April 30, 2018.

The determined discovery date of the claim meant that the expiry of the limitation period should have occurred on April 30, 2020. However, all limitation periods in Ontario were suspended during that time, due to the Order made by the provincial government under s. 7.1(2) of the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9., Reg. 73/20 (“Reg. 73/20”). As aforementioned, Reg. 73/20 was in force from March 16 to September 14, 2020. The plaintiff argued, and the court agreed, that the impact of Reg. 73/20 was to extend the running of the limitation period by 183 days. The court stated that “all limitation periods subject to the regulation were extended by roughly six months”.

Heritage argued that this was the incorrect interpretation of Reg. 73/20; however, the court noted that Heritage had failed to articulate why this was incorrect, other than to suggest that the revocation of the regulation effectively revoked any benefit it otherwise may have conferred. This was, clearly, not accepted by the court. Had an alternative opposing argument been advanced that acknowledged the suspension of limitation periods during the 183 days (i.e. that all limitation periods which would have elapsed during this time expired on the date the regulation was revoked), the outcome on this issue may have been different.

Regardless, Heritage and Always Handy were successful in opposing the plaintiff’s motion to add them to the main action, due to the expiry of the limitation period. As JLL and the municipality did not oppose the plaintiff’s motion, an order was granted to add them as defendants to the main action.

This case serves as an excellent example of the obligations imposed on a plaintiff to exercise diligence and keep their counsel informed of all information of which they become aware. As well, the case, importantly, clarifies that all limitation periods subject to Reg. 73/20 were extended by 183 days.

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Nicole A. McAuley

Many Ontarians spent the past year adjusting in accordance with the ever-changing public health directives for workplaces. Most employers and employees have become comfortable with safety plans, working from home, masks, regular sanitizing and hand washing, and social distancing. Now, as the vaccines are rolled out and becoming available to a wider range of employees, many employers are left wondering whether a mandatory vaccination policy would allow them to return to a pre-pandemic workplace scenario sooner than anticipated. While this may be appealing, the liability implications of all such policies should be carefully considered prior to their introduction.

It is well known that employers have an obligation to maintain the health and safety of their employees in the course of their employment. That can mean very different things, depending on the type of workplace. A hospital, a factory, and an office all require different measures to ensure employee safety.

When approaching the issue of a mandatory vaccination policy, employers must assess how such a policy will balance their employees’ human rights and privacy against the employer’s obligation to maintain health and safety in the workplace. There is no panacea and an employer may be required to have different approaches/policies for different workplaces. Mandatory vaccination is an intrusive imposition on employees, which requires them to undertake medical treatment that may result in an adverse reaction, or may be contrary to the employees’ religious/moral beliefs.

When assessing whether a mandatory vaccination policy is appropriate for a specific workplace, an employer must assess the transmission risk in the workplace and determine whether vaccination is a reasonable requirement of employment. Consideration should also be given to whether workers are regularly in contact with vulnerable people, whether there is a history of transmission in the workplace (by employees or others), whether alternative, less intrusive measures can sufficiently mitigate the risks, and the specific circumstances of each workplace.

It is important for employers to be aware that the imposition and enforcement of a mandatory vaccination policy could result in wrongful dismissal and/or human rights claims. Employees may object to such policies for medical or religious/moral reasons. In such circumstances, employers have an obligation to accommodate their employees to the point of undue hardship. If an employee cannot be accommodated with modified work or working from home, the employee is entitled to take a COVID-19 related, job-protected, unpaid infectious disease leave. However, if an employee has been effectively working from home or on modified duties prior to the imposition of such a policy, it will likely be difficult for an employer to establish that it can no longer accommodate the in employee in the same manner.

The imposition of a mandatory vaccination policy could also result in allegations of constructive dismissal, where an employee could claim that the employer unilaterally changed the fundamental terms of their employment.

It is currently unclear how courts and tribunals will respond to legal challenges related to such policies. Pre-pandemic, mandatory workplace vaccinations and “mask or vax” policies were litigated in the health care industry and the decisions were largely divided. Decisions where these policies were struck down, often included a finding of insufficient evidence proving that such a policy greatly limited the spread of disease. Given the rate of effectiveness of COVID-19 vaccines, the impact of asymptomatic spread of COVID-19, the evidence in support of masking policies, and the potential impact of contracting COVID-19, many people are of the opinion that “mask or vax” policies in relation to COVID-19 will likely have a stronger chance of being upheld in the right types of workplaces, such as healthcare and industrial/factory settings. In order to be successful in such challenges, employers will need to exemplify why alternative measure are insufficient.

Whether or not someone is vaccinated is sensitive personal health information. Employers must pay careful attention to who is collecting information, what protections are in place to safeguard the information, and who will have access to this information. Employers must ensure that the collection, storage, and use of this information complies with the relevant statutory requirements.

Notably, mandatory vaccination policies are just one way to address workplace safety and will not necessarily be justified for every workplace. To date, neither the federal nor provincial governments have elected to make vaccinations mandatory across the population, or in relation to any specific industries. It may be that continued permission to work from home, masking, sanitizing, and social distancing in accordance with the continued public health directives are sufficient to protect employees in a workplace. This will likely be the case in office environments, absent special circumstances.

If an employer decides to proceed with a mandatory vaccination policy, they must decide how the policy will be communicated to employees. All vaccination policies must include a procedure for employees requesting workplace accommodations for valid exemptions and employers must make information about that process available to all employees. All policies should be consistently enforced across the workplace, with the exception of people who require accommodation for medical and religious/moral reasons. The imposition of a mandatory vaccination policy requires careful consideration. Consultation with appropriate legal counsel can assist employers weigh these considerations and help avoid pitfalls with the design and roll-out of such policies.

Vaccines are not 100% guaranteed and asymptomatic transmission of vaccinated people to non-vaccinated people is still unclear. Whether or not employers decided to impose mandatory vaccination policies, they must ensure other preventative measures such as social distancing, masking, sanitizing, and hand washing are enforced in the workplace until public health guidelines change.

Note: This article is only in relation to non-unionized workplaces. Unionized workplaces have additional factors that must be considered. Legal counsel should be consulted in advance of the imposition of any such policies.

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