Currently, Nova Scotia does not have standardized limitation periods in its Limitation of Actions Act. The limitation period for an action for wrongful or constructive dismissal (contract) in Nova Scotia is set out in section 2(1)(e) of the Act and provides a six year limitation period:
2(1) The actions mentioned in this Section shall be commenced within and not after the times respectively mentioned in such Section, that is to say:
(e) all actions grounded upon any lending, or contract, expressed or implied, without specialty, or upon any award where the submission is not be specialty, or for money levied by execution, all actions for direct injuries to real or personal property, actions for the taking away or conversion of property, goods and chattels, actions for libel, malicious prosecution and arrest, seduction and criminal conversation and actions for all other causes which would formerly have been brought in a the form of action called trespass on the case, except as herein excepted, within six years after the case of any such action arose;
However, an action could survive beyond six years if a court exercises its discretion under section 2(4) by giving consideration to the (a) length and reasons for the delay; (b) information provided by the defendant to the plaintiff respecting time limits; (c) the extent to which the parties evidence would or is less cogent; (d) the conduct of the defendant after the cause of action arose that impeded the plaintiff’s reasonable requests to inspect information to ascertain relevant facts; (e) the duration of any disability of the plaintiff; (f) the plaintiff’s actions; and, (g) the steps taken by the plaintiff to obtain expert advice.
The uncertainty and unpredictability of this ability to extend the limitation period this is obvious.
On October 29, 2014, the Nova Scotia government introduced Bill 64 which is scheduled for its last Law Amendment Committee Meeting tonight, November 5. If Bill 64 becomes law, employers will want to be mindful of what it means for them. Three things come to mind:
Would there be a new limitation period for civil claims against employers if Bill 64 becomes law?
Yes there would be. There would be one uniform limitation period – two years’ from the “date of discovery” and regardless of when a claim is discovered, Bill 64 will prevent a claim after 15 years from the day of the act or omission that caused it.
Would there be any exceptions?
Yes, there will be. The limitation periods do not run while a claimant is a minor or while a claimant is incapable of bringing a claim due to a physical, mental or psychological condition. In such case, the limitation period is suspended.
What about our record retention system if the Bill passes?
You will want to consider reviewing your retention policy. The benchmark for record retention in Nova Scotia is generally guided by the limitations set out in statutes that require that specific records be retained (i.e., Labour Standards Code, Workers’ Compensation Act, etc.) and those statutory limitations do not change as a result of Bill 64. However, Bill 64 expands the time frame that is generally considered “safe” for overall record retention overall. If Bill 65 passes, we expect that employers will want to retain records that may be required to defend a wrongful or constructive dismissal claim for 15 years.