Sexual harassment not severable from constructive dismissal claim: Nova Scotia Court of Appeal

Harassment occurred more than two years before lawsuit, but termination of employment more recent

Sexual harassment not severable from constructive dismissal claim: Nova Scotia Court of Appeal
Radio broadcasting employee sued employer claiming toxic work environment

The limitation period of a claim of constructive dismissal from sexual harassment commences from the date of termination of employment, not of the alleged sexual harassment, the Nova Scotia Court of Appeal has ruled.

In HFX Broadcasting Inc. v. Cochrane, 2022 NSCA 67, Lindsay Cochrane was hired by Halifax-based HFX Broadcasting in 2017 to host a morning show on a radio station. Cochrane claimed that HFX had a “toxic work environment” and that she suffered repeated sexual and non-sexual harassment. She claimed that this amounted to constructive dismissal.

In April 2018, Cochrane filed a complaint with HFX’s in-house counsel, but they declined to determine whether harassment occurred.

She also filed a complaint with the Canadian Human Rights Commission in June 2018 and she gave her two weeks’ notice to terminate her employment. Her last day of work was in August.

In 2020, Cochrane withdrew her complaint as she was dissatisfied with the time the commission took with the investigation. A few days later, Cochrane sued HFX before the Nova Scotia Supreme Court on the sole cause of action of constructive dismissal.

HFX sought to have her motion summarily dismissed and claimed that the action was barred by statutory limitation. The judge dismissed HFX’s motion and ruled that the sexual harassment allegations could not be severed from the entire claim for limitation purposes.

On appeal, HFX argued that Cochrane’s claim was statute barred since it was based upon sexual harassment that took place in 2018, more than two years after her lawsuit.

The appellate court disagreed.

Sexual harassment not severable from constructive dismissal

The appellate court found that Cochrane’s claim did not make a tort claim based on sexual harassment, but rather for loss of employment from constructive dismissal. Thus, the two-year limitation period commenced not from the date of sexual harassment but from the date of the termination of her employment, said the court.

Since the claim of constructive dismissal was based on both sexual and non-sexual harassment, HFX could not seek to cleave away relevant evidence by arguing that it was statute barred, said the court.

The appellate court found no error in the dismissal of HFX’s motion for summary judgment and dismissed the appeal.

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