Justice Healy's January 2015 decision in Patridge v
Botony Dental Corporation is likely to be on many lists of
top human rights law decisions already decided this year. Besides
awarding damages under the Human Rights Code, Justice
Healy's decision discusses the test for family status
discrimination (the first time an Ontario court has done so).
Lee Partridge worked as an office manager at Botony Dental
Corporation. During a maternity leave, Botony advised Patridge she
would return to work as a dental hygienist, beginning most days at
9am. Partridge insisted that she be reinstated as office manager.
Partridge also alleged that Botony knew that Patridge could not
begin work at 9am due to childcare arrangements. Botony eventually
Partridge sued for wrongful dismissal and breach of the
Human Rights Code. The court awarded her 12 months pay in
lieu of notice. But, importantly, it also awarded her $20,000
damages for family status discrimination. This case is only the
second Superior Court reported decision where a court has exercised
its jurisdiction under section 46.1 of the Code to award
damages for breach of the Code, the first being Wilson v. Solis
Mexican Foods Inc.
Also, importantly, Justice Healy engaged in the ongoing debate
over the test for family status discrimination. In Johnstone v
Canada (Border Services), the Federal Court of Appeal held
that a plaintiff must demonstrate the following to prove prima
facie discrimination resulting from childcare obligations:
that a child is under his or her care and supervision
that the childcare obligation at issue engages the
individual's legal responsibility for that child, as opposed to
a personal choice
that he or she has made reasonable efforts to meet those
childcare obligations through reasonable alternative solutions, and
that no such alternative solution is reasonably accessible
that the impugned workplace rule interferes in a manner that is
more than trivial or insubstantial with the fulfillment of the
The employer can rebut a finding of prima facie
discrimination by demonstrating that the workplace policy (in this
case, the hours of work) is a bona fide occupational
In Ontario, the Human Rights Tribunal of Ontario applied a
different test for family status discrimination in Devaney v ZRV
Holdings Limited (albeit involving eldercare
obligations). That test, which is fact-specific, was described as
follows: "the applicant must establish that the
respondents' attendance requirements had an adverse impact on
the applicant because of absences that were required as a result of
the applicant's responsibilities as his mother's primary
caregiver." The Tribunal, like the Federal Court of Appeal,
noted there is no discrimination if the care obligation is a
choice. Both the Tribunal and the Federal Court of Appeal rejected
the more restrictive test applicable in British Columbia from Health Sciences
Assoc. of B.C. v. Campbell River and North Island Transition
Society: "when a change in a term or condition of
employment imposed by an employer results in a serious interference
with a substantial parental or other family duty or obligation of
the employee." Justice Healy applied the Johnstone
test, without discussing either Devaney or the B.C.
To the extent there is any debate in Ontario law on the correct
test, this decision seems to decide the matter. Though the Tribunal
has not applied Partridge, it seems likely that many
Tribunal members will feel themselves bound by a court decision
applying the Code. As such, employers should be mindful
that if an employee has childcare obligations and has made
reasonable but, ultimately, unsuccessful efforts to find
alternative solutions, the employer may be obligated to accommodate
the employee's needs, especially with respect to hours of
It also demonstrates that the courts are increasingly prepared
to exercise their new-found power under the Code to award
human rights damages. As such, employers should be aware that they
may be liable for general damages in addition to wrongful dismissal
compensation if discrimination is a factor in the employee's
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