Unjust Dismissal Complaint Dismissed for Untimeliness

Reasons for decision [NAME], complainant, and [COMPANY]. ([NAME]), respondent. Board File: 037001-C Neutral Citation: 2026 [NAME] 1246 May 1, 2026 The panel of the [NAME] (the Board) was composed of [NAME], Vice-Chairperson, sitting alone pursuant to section 14(3.1) of the Canada [NAME] (the [NAME] ). Parties’ Representatives of Record Mr. [NAME], on his own behalf; Mr. [NAME], for [COMPANY]. ([NAME]).

I. Nature of the Complaint [ 1 ] On May 17, 2022, Mr. [NAME] (the complainant) filed a complaint with the [NAME] of Employment and Social Development Canada (ESDC), alleging that he was constructively dismissed by [COMPANY]. ([NAME]) (the respondent), contrary to section 240 of the [NAME] . [ 2 ] The ESDC referred the complaint to the Board on September 14, 2023, after the complainant requested adjudication. [ 3 ] On September 15, 2023, the Board acknowledged receipt of the referral and set a schedule for the parties to provide further information and submissions. [ 4 ] On October 10, 2025, the Board asked the parties for additional submissions about the timeliness of the complaint and the allegations of constructive dismissal. The Board specifically requested submissions about the date of the alleged dismissal. [ 5 ] Section 16.1 of the [NAME] provides that the Board may decide any matter before it without holding an oral hearing. Having reviewed all of the material on file, the Board is satisfied that the documentation before it is sufficient for it to determine this matter without an oral hearing. [ 6 ] After careful consideration of the parties’ submissions, the Board dismisses the complaint as untimely. These are the reasons for the Board’s decision.

II. Factual Background [ 7 ] The respondent operates [NAME] across Canada. In August 2018, it offered employment to the complainant as an on-air host at its radio station in Kitchener, Ontario. The complainant accepted the offer of employment, and he started hosting Kitchener Today, a daily three-hour talk show, in September 2018. [ 8 ] The complainant states that he asked the respondent for an increase in his compensation in the fall of 2019 and that this request was denied. He describes that he also requested salary increases in 2020 and twice in 2021 and that the respondent did not increase his compensation. [ 9 ] The complainant also described that he applied for two promotions during his employment and that he was not the successful candidate for either position. [ 10 ] In early February 2022, the complainant received an offer from [NAME] for a temporary position as a media relations officer. The monthly pay for this position was about $1,000.00 more than his pay with the respondent. He advised the respondent about the offer from [NAME] and asked if there was anything it was willing to do for him. [ 11 ] On February 9, 2022, the respondent’s News Director called the complainant to respond to him about the [NAME] job offer. According to the complainant, the News Director told him there was nothing that the respondent would do in response to the offer because it did not have funds in its budget. The complainant describes that he was unnerved by this response, and he decided not to host his show on February 9, 2022. [ 12 ] On February 9, 2022, the complainant sent an email to the respondent in which he resigned his employment, as follows: I am truly sorry it has come to this. I am intensely proud of the work the talk team has done over the past almost 4 years in creating something--- out of nothing-- with the advent of Kitchener Today. Please accept this notice of my resignation. I am more than willing to continue on air, in the professional manner I have always maintained…through Friday February 18 I thank you for the opportunity to sign off in the appropriate way Ironically that will mark exactly 35 years since I first came on air in Waterloo Region. [ 13 ] The complainant’s last day of work was February 18, 2022. [ 14 ] On March 7, 2022, the complainant filed a complaint with the Canadian Human Rights Commission alleging discrimination in employment based on age. He identified the last date of the alleged discrimination as February 9, 2022. [ 15 ] The complainant filed the unjust dismissal complaint on May 17, 2022. On his complaint form, he indicated that the date of dismissal was February 18, 2022.

III. Positions of the Parties [ 16 ] The sole issue to be determined in the present decision is whether the complaint was filed within the time limit provided for under the [NAME] . Therefore, although the Board has reviewed the parties’ arguments on all issues raised in this complaint, it will only reference their positions regarding the timeliness of the complaint (see [NAME] v. [NAME] ([NAME]) , 2011 SCC 62). A. The Respondent [ 17 ] The respondent argues that the complaint is untimely. It denies that it dismissed the complainant, constructively or otherwise, noting that he voluntarily resigned on February 9, 2022. [ 18 ] The respondent notes that a claim of constructive dismissal involves a claim that an employer made a unilateral and substantial change to the employment contract that was rejected by the employee. It submits that the date of the alleged dismissal is the date on which the complainant provided notice of resignation because this is the date on which he rejected the alleged change to the terms of his employment. The respondent notes that, according to the complainant’s description of the relevant events, he viewed the respondent’s refusal to do anything in response to his offer from [NAME] as the fundamental change to his employment contract. The respondent argues that the complainant unequivocally accepted its response to his [NAME] offer as a repudiation of the employment contract in his email of February 9, 2022. [ 19 ] The respondent submits that the complaint is untimely because it was filed on May 17, 2022, more than 90 days after February 9, 2022. B. The Complainant [ 20 ] The complainant argues that the complaint is timely. He submits that, although he was not dismissed, the date of dismissal for the purpose of the time limit for filing an unjust dismissal complaint should be his last day of work, which was February 18, 2022. The complainant also argues that the date of dismissal should be determined from the viewpoint of a reasonable person. He submits that a reasonable person would understand that his date of dismissal was the day on which he stopped working. [ 21 ] The complainant argues that, by filing his complaint on May 17, 2022, he filed it on the 89th day after February 18, 2022, and it is therefore timely. Moreover, he states that his complaint was only clear to him after certain events occurred after his last day of work and that, therefore, the Board should accept his complaint as timely.

IV. Analysis and Decision A. Legal Principles [ 22 ] Section 240(2) of the [NAME] provides that a complaint of unjust dismissal “shall be made within ninety days from the date on which the person making the complaint was dismissed.” [ 23 ] In the present complaint, the complainant was not dismissed. He resigned his employment, and he alleges constructive dismissal. The Board must first determine the date on which the complainant was dismissed before it can assess whether the complaint was filed within the 90-day time limit set out in section 240(2) of the [NAME]. [ 24 ] The unjust dismissal provisions of the [NAME] apply to claims of constructive dismissal (see Lennox , 2022 [NAME] 1009, at paragraphs 31 – 32). [ 25 ] In Lennox , the Board summarized the Supreme Court of Canada’s decision in [NAME] v. [NAME] Commission , 2015 SCC 10, where it concluded that, at common law, constructive dismissal can take two forms, being “that of a single unilateral act that breaches an essential term of the contract, or that of a series of acts that, taken together, show that the employer no longer intended to be bound by the contract” (paragraph 43). The legal standard to determine if there has been a constructive dismissal is whether a reasonable person in the same circumstances as the employee would have felt obliged to resign. [ 26 ] The Board also notes that the respondent cited one of the Interpretation, Policies and Guidelines (IPGs) issued by the [NAME] of the ESDC entitled “Constructive Dismissal” (IPG-033). In IPG-033, the [NAME] provides the following guidance about the timing of a constructive dismissal: A constructive dismissal takes place at the time the employer changes the terms and conditions of employment. In order to be admissible, the complainant must file the complaint within 90 days of that time as required by subsection 240(2) of the [NAME] . (see Constructive dismissal - IPG-033 (June 20, 2024), Government of Canada, Retrieved April 20, 2026, from https://www.canada.ca/en/employment-social-development/programs/laws-regulations/labour/interpretations-policies/constructive-dismissal.html) [ 27 ] The Board is not bound by policy statements and other guidelines published by administrative bodies, such as a direction issued by the [NAME] in its IPGs, but they can serve as a guide for interpretation and decision-making (see Les Entreprises S.M.T.R. Inc. , 2021 [NAME] 994). However, the Board does not agree that the case law supports the interpretation in IPG-033 of how the time limits should be calculated in the case of an unjust dismissal complaint. [ 28 ] [ADDRESS] of Appeal of Alberta (ABCA) considered the question of when the employment contract is terminated in a claim of constructive dismissal in [NAME] v. [NAME]’s Edge School Division No . 73 , 2006 ABCA 286 (CanLII) ( [NAME] ). The circumstances in [NAME] involved an appeal of a preliminary decision of a [NAME] that dismissed a claim of constructive dismissal as untimely. The ABCA noted that the [NAME] had concluded the following: [ 7 ] … in the case of a constructive dismissal, “the termination of the contract occurs at the date the changes are put into effect, not the date upon which the employee communicates his or her non-acceptance of the changes to the employer”. [ 29 ] The ABCA allowed the appeal in [NAME] , finding that the [NAME] had erred in law in finding that the limitation period for making the claim started on the date of the alleged changes to the employment contract. The ABCA explained its reasoning as follows: [ 14 ] On the facts of this case, it is unnecessary for us to determine what limitation period, if any, ought to be imposed on constructive dismissal appeals brought pursuant to the Act . The employment relationship is contractual. It is settled law that repudiation of a contract does not terminate the contract unless the repudiation is accepted. Until the repudiation is accepted, the contract continues. In the employment context, acceptance is often communicated by resignation but it can take other forms : [NAME], The Law of Contracts , 5 th ed. (Toronto: [COMPANY]., 2005) at 448 and [NAME] & [NAME], Quitting for Good Reason: The Law of Constructive Dismissal in Canada (Ontario: [COMPANY]., 2001) at 48. Therefore, the Board erred in law in concluding the contract was terminated on the date of the alleged repudiation and not on the date the appellant communicated her acceptance of the alleged repudiation. (emphasis added) [ 30 ] The Board assessed the timeliness of a complaint of constructive dismissal in [NAME] , 2023 [NAME] LD 5015. It confirmed that “the relevant date for assessing timeliness is the one on which an employee rejects an employer’s attempt to impose a unilateral and substantial change to the employment contract” (page 5), noting that the date will often be the date of an employees’ resignation or the last day on which they worked. [ 31 ] There are also unjust dismissal decisions issued prior to the amendments to the [NAME] under Bill C-44 (see Budget Implementation Act, 2017, No. 1 ) in which ad hoc adjudicators found that, in complaints alleging constructive dismissal, the date of dismissal is the date when an employee decides not to accept the change of condition by the employer (see [NAME] v. [COMPANY] of Canada , [2016] C.L.A.D. No. 138 (QL), at paragraph 65). Amongst other changes, Bill C-44 transferred to the Board the jurisdiction to adjudicate unjust dismissal complaints, which was previously the responsibility of ad hoc adjudicators. [ 32 ] The Board notes that, in Finnegan , 2024 [NAME] 1140, it relied on case law under Part I (Industrial Relations) of the [NAME] finding that the date of dismissal was when the complainant had all the facts necessary to advance their case. However, the time limit for instituting complaints under Part I uses different language from the language in section 240(2) of the [NAME] . Section 97(2) of the [NAME] requires complaints under Part I to be filed “not later than ninety days after the date on which the complainant knew, or in the opinion of the Board ought to have known, of the action or circumstances giving rise to the complaint.” In contrast, section 240(2) does not reference a complainant’s knowledge of the circumstances giving rise to the complaint but states that the complaint shall be made within 90 days from the date on which the person was dismissed. It is the Board’s view that the 90-day time limit in section 240(2) of the [NAME] starts from the date of dismissal and not from the date on which the complainant knew or ought to have known of the facts necessary to advance their case. [ 33 ] Accordingly, the Board finds that, in claims of constructive dismissal, the date of dismissal is usually the date when the employee communicates definitively that they do not accept the changes made by the employer to the terms of their employment. In some circumstances, the determination of the date of dismissal may be affected by a delay in the employee’s communication that they do not accept the changes or by the employer’s decision not to accept the employee’s resignation. B. Application to the Present Complaint 1. Was the complaint filed within the 90-day time limit set out in section 240(2) of the [NAME] ? [ 34 ] The complainant argues that the date of dismissal was his last day of work, which was February 18, 2022.

Accordingly, he says that, by filing his complaint on May 17, 2022, he made his complaint within the 90-day time limit. The respondent argues that the 90-day time limit starts from February 9, 2022, the date of the complainant’s resignation, and that, therefore, his complaint is untimely. [ 35 ] In [NAME] v. [COMPANY] of Canada , 2011 ONSC 2840 (CanLII) ( [NAME] ), the Ontario Superior Court (ONSC) confirmed that a constructive dismissal claim arises when the employee accepts the employer’s repudiation of the employment contract (at paragraph 41). In [NAME] , the employee provided a resignation note to her employer on November 5, 2007, stating that her resignation was effective on November 16, 2007. The ONSC found that the resignation note was unconditional, definitive and irrevocable and that, therefore, the claim of constructive dismissal arose on November 5, 2007, when she refused to accept the employer’s changes to her employment contract. [ 36 ] Similarly, in the present complaint, the complainant provided a definitive and unconditional notice of resignation to the respondent on February 9, 2022. He wrote: “Please accept this notice of my resignation. I am more than willing to continue on air, in the professional manner I have always maintained…through Friday February 18.” It was through the email on February 9, 2022, that the complainant advised the respondent that he did not accept the conditions of his employment contract. [ 37 ] The complainant chose February 18, 2022, as his last day of work, but this choice does not establish the date of dismissal. By communicating his decision to resign on February 9, 2022, the complainant confirmed the end of the employment relationship. Although he did not expressly identify his claim of constructive dismissal until after the end of his employment, he nonetheless resigned his employment because he did not accept the terms of employment as of February 9, 2022. Therefore, the Board finds that February 9, 2022, is the date on which the complainant was allegedly dismissed. [ 38 ] The circumstances that might affect the determination of the date of dismissal are not present in the present complaint. The complainant provided his resignation within a reasonable time frame of the alleged repudiation of the employment contract, and the employer accepted the resignation and the notice period he had proposed in his resignation letter. [ 39 ] The complainant filed his unjust dismissal complaint on May 17, 2022, more than 90 days after February 9, 2022. Therefore, the complaint is untimely. The use of the word “shall” in section 240(2) means that the time limit is mandatory. Consequently, the failure to file the present complaint within 90 days from the date of the alleged dismissal renders it inadmissible.

2. Has the Head of Compliance and Enforcement exercised the discretionary authority to extend the time limit applicable to the present complaint? [ 40 ] Section 240(3) of the [NAME] provides that the Head of Compliance and Enforcement (the Head) may extend the time limit for making an unjust dismissal complaint in certain circumstances: 240 (3) The Head may extend the period set out in subsection (2) (a) if the Head is satisfied that a complaint was made in that period to a government official who had no authority to deal with the complaint but that the person making the complaint believed the official had that authority; or (b) in any circumstances that are prescribed by regulation. [ 41 ] In Martin , 2022 [NAME] 1003, the Board considered the Head’s discretionary authority to extend the 90-day time limit for filing an unjust dismissal complaint. After reviewing the jurisprudence, the Board outlined the following interpretation of the Head’s discretionary authority under section 240(3) of the [NAME] : [ 36 ] Based on this jurisprudence, the Board first finds that the Minister, and now the Head, has the power to grant extensions of the time to file a complaint of unjust dismissal in the circumstances described at section 240(3) of the [NAME] . The Board further finds that, even in the absence of an explicit granting of such an extension by the Minister, or now the Head, the time to file the complaint will be deemed to have been extended if the evidence in the record supports a conclusion that the Minister, or now the Head, did in fact exercise the discretion under section 240(3) of the [NAME] . [ 42 ] The Board notes that, in the present complaint, the Head did not explicitly exercise the discretionary authority to extend the time limit in accordance with section 240(3) of the [NAME] . Therefore, the Board must consider whether the Head has implicitly exercised the authority to extend by accepting a complaint filed outside the prescribed time limit and referring it to the Board for adjudication. [ 43 ] The Board finds that there is no evidence in the present complaint to support a conclusion that the Head exercised the discretionary authority to extend the time limit for making the complaint. The complainant identified on his complaint form that the date of dismissal was February 18, 2022, and, by making his complaint on May 17, 2022, he filed it within 90 days of the identified date of dismissal. There is no evidence that the Head considered an extension of the time limit for filing given the complainant’s identification of February 18, 2022, as the date of dismissal. [ 44 ] Moreover, the complainant did not provide evidence to the Head related to a filing with another government official who lacked the authority to deal with the complaint or any other circumstances to support extending the time limit, pursuant to section 240(3)(a) of the [NAME] . [ 45 ] Section 245(b) of the [NAME] empowers the Governor in Council to make regulations “prescribing circumstances for the purposes of paragraph 240(3)(b).” Section 29.1 of the Canada Labour Standards Regulations , CRC, c 986, prescribes the following circumstances for the extension of the time limit for filing an unjust dismissal complaint: 29.1 … (a) the making of a complaint under subsection 240(1) of the Act, if a complaint that is based on substantially the same facts was previously made under subsection 246.1(1) or 247.99(1) of the Act in accordance with subsection 246.1(3) or 247.99(2) of the Act, as the case may be, and that complaint was withdrawn; and (b) the making of a complaint under subsection 240(1) of the Act, if a complaint that is based on substantially the same facts of unjust dismissal was previously made under that subsection in accordance with subsection 240(2) of the Act and that complaint was withdrawn because it is incomplete or contains an error. [ 46 ] There is no evidence that either of the circumstances prescribed in the above-cited provisions was present to support the Head’s exercise of the discretionary authority to extend the time limit for filing the present complaint.

3. Should the Board extend the time limit for filing the unjust dismissal complaint? [ 47 ] The Board has the authority under section 16(m.1) of the [NAME] to extend the time limits set out in the [NAME] for starting a proceeding, including the time limit set out in section 240(2). Section 16(m.1) provides as follows: 16 The Board has, in relation to any proceeding before it, power … (m.1) to extend the time limits set out in this Act for instituting a proceeding. [ 48 ] The respondent provided unjust dismissal case law from ad hoc adjudicators explaining that these decision-makers did not have jurisdiction to extend the time limit under the Code (see Black v. Waskaganish First Nation , [2011] C.L.A.D. No. 424 (QL)). However, those decisions were issued prior to the amendments to the [NAME] under Bill C-44. These amendments included the transfer of the jurisdiction to adjudicate unjust dismissal complaints from ad hoc adjudicators to the Board.

Accordingly, the Board has the power to extend the time limit for making a complaint of unjust dismissal, pursuant to section 16(m.1) of the [NAME] . [ 49 ] The Board does not routinely extend time limits and will consider doing so only in compelling or exceptional circumstances (see [NAME] , 2010 [NAME] 526, application for judicial review dismissed by the Federal Court of Appeal in [NAME] v. [NAME] , 2012 FCA 69). The Board’s case law establishes the principle that it is important for parties to be confident that the time limits provided for in the [NAME] will be respected. Among other things, it is important for parties who will have to respond to the complaint to know whether they need to preserve evidence and otherwise prepare for a complaint under the [NAME] . [ 50 ] The burden of satisfying the Board that it should extend the time limit rests with the complainant, and the Board will only act to extend a time limit for filing a complaint when a complainant establishes compelling reasons or circumstances that justify the extension (see [NAME] , 2003 [NAME] 241). [ 51 ] In the present complaint, the complainant has not presented any reasons to justify extending the time limit for filing his complaint. He argued that his complaint was timely because the date of dismissal was February 18, 2022, his last day of work, and therefore did not argue that there were compelling or exceptional reasons to justify extending the time limit. [ 52 ] In the absence of any exceptional circumstances that prevented the complainant from filing his complaint in a timely manner, the Board declines to exercise its discretion to extend the time limit in section 240(2) of the [NAME] for filing the present complaint. [ 53 ] Given its finding that the complaint is untimely, the Board has not considered whether section 242(3.1)(b) of the [NAME] applies to restrict its jurisdiction to consider the present complaint. Nor has it considered whether the complainant’s resignation was a dismissal for the purpose of section 240 of the [NAME] .

V. Conclusion [ 54 ] The Board finds that the date on which the complainant was allegedly dismissed is February 9, 2022, and that, therefore, the complaint was filed more than 90 days after the date of dismissal. The Board dismisses the complaint as untimely. ____________________ [NAME]-Chairperson