February 9, 2023
Author: Kathleen O’Brien
On November 3, 2022, the Nova Scotia Court of Appeal released its decision in HFX Broadcasting Inc v Cochrane. Cochrane had sued her former employer, HFX Broadcasting, for constructive dismissal. Cochrane alleged that over a period of several years, she had been subjected to a litany of repeated sexual harassment by her immediate supervisor and non-sexual harassment through ostracism
Canadian Human Rights Commission Investigation on Sexual Harassment
Cochrane claimed that her supervisor harassed her both sexually and non-sexually, subjecting her to sexual comments, ostracism, and verbal bullying. Cochrane filed a complaint with HFX Broadcasting’s in-house lawyer, but an investigator declined to say whether harassment had occurred, and Cochrane’s supervisor remained. Cochrane resigned from her position with HFX Broadcasting on July 26, 2018, by providing two weeks notice. Her final day of employment was August 8, 2018.
After becoming frustrated with the time for a Canadian Human Rights Commission investigation, Cochrane filed a lawsuit in the Supreme Court of Nova Scotia on July 30, 2020. Cochrane’s only cause of action was constructive dismissal, claiming that her employment contract had been breached when the harassment and toxic workplace she was subjected to created unilateral changes to the terms of her employment contract.
In November, HFX Broadcasting requested an admission of facts from Cochrane, and Cochrane’s response acknowledged that sexual misconduct occurred prior to July 26, 2018. However, Cochrane alleged that her immediate supervisor’s non-sexual harassment continued in the form of ostracism up until her departure from HFX Broadcasting on August 8, 2018.
HFX Broadcasting filed a Notice of Motion for Summary Judgement to strike claims of sexual harassment from Cochrane’s claim, on the grounds that they were limitation barred. HFX Broadcasting claimed that Cochrane had admitted the sexual misconduct had not occurred later than July 26, 2018, but that Cochrane did not file her claim until July 30, 2020. Justice Arnold of the Supreme Court of Nova Scotia dismissed HFX Broadcasting’s motion for summary judgement, holding that sexual harassment allegations could not be severed and that the entire claim for constructive dismissal began to run on Cochrane’s final day of employment.
Appealing Constructive Dismissal with the Supreme Court of Nova Scotia
HFX Broadcasting appealed the decision, asserting that Cochrane’s claim for constructive dismissal is limitation barred to the extent that it is based upon sexual harassment. Justice Joel Fichaud determined that there was no error in dismissing HFX Broadcasting’s motion for summary judgement.
In dismissing the Appeal, Justice Fichaud determined that Cochrane’s claim is that both sexual harassment and harassment occurred, “with the cumulative effect that her workplace differed fundamentally from that envisaged by her employment contract”. Cochrane’s allegations of sexual harassment were not their own independent claim, but rather facts that support her claim of constructive dismissal. That claim is based on allegations both sexual and otherwise.
Justice Fichaud relied on the decision of Dick v Canadian Pacific Ltd. which emphasized the cumulative effect of actions that led to a claim of constructive dismissal. Turning to Cochrane’s claim, Justice Fichaud said that sexual harassment allegations cannot be cleaved off for separate treatment under the Limitations of Actions Act.
Dismissing HFX Broadcasting’s appeal, Justice Fichaud clarified that Cochrane’s limitation period did not begin to run until the final day of her employment – it did not begin to run on the final date on which she experienced sexual harassment.
Understanding the Allegations of Sexual Harassment and Constructive Dismissal
It is important that both employers and employees understand that allegations of sexual harassment, even if outside the period of limitations, may form part of the cumulative factual analysis in determining whether there was constructive dismissal.
If you have questions about harassment or constructive dismissal please contact any of Carbert Waite’s Employment Lawyers.