Canada: Family Status: Latest Word From Ontario

Last Updated: June 25 2015
Article by Lisa Gallivan and Alison Strachan

Over the last few years we have discussed a number of family status decisions by human rights adjudicators and labour arbitrators. The law in this area continues to expand and grow. This case comment looks at a recent Ontario Human Rights Tribunal decision, Rowley v. 1145678 Ontario Limited and Stuart MacDonald 2015 HRTO 778 (CanLII) where Adjudicator Alison Renton found that an employer had not discriminated in terminating the employment of a mother with a special needs child. As is always the case, we recommend that readers click on the above link and read the full-text case for a full appreciation of the case.

What happened?

Ms. Rowley was employed by the respondent car dealership as a service coordinator from early January 2014 to mid-February 2014. She reported to the personal respondent, Stuart MacDonald.  Her duties included booking service appointments for customers, by telephone, email or in-person at her desk. Ms. Rowley alleged that she was terminated, in part, because she took personal calls about her child and was away from work on a couple of occasions because of her child. The employer denied this saying that her employment was terminated for "over socializing", not being at her position and performing her job, and returning late from lunch on more than one occasion.

When terminating Ms. Rowley, the personal respondent called her into his office and advised her that her employment was terminated. No reasons were given for her termination at that time. The termination letter that was provided to Ms. Rowley did not provide reasons for her termination. The Record of Employment issued gave the explanation "dismissal/termination within probationary period". Ms. Rowley was persistent in seeking a reason for her termination and Mr. MacDonald finally told her that although he had told her to stop socializing with certain people at the dealership, she had not. Ms. Rowley did not accept. She claimed that she was then told that she was terminated for taking personal calls at work, being late returning from lunch, socializing with the parts manager, and missing time from work. The employer denied this.

Ms. Rowley testified that she had received some personal telephone calls about her son from his school, a hospital and his therapist. She testified that she had taken time off of work when her son was sick and also when his school was closed due to the weather. She agreed during cross-examination that the personal respondent had authorized these absences to attend to these family matters. The employer testified that Ms. Rowley was terminated because of her socializing, lack of performance in her role, and extended lunches.

During her testimony, Ms. Rowley admitted that there were times she was not at her desk. She testified that she left her desk sometimes because she went into other departments to get information about clients, rather than calling the other department. There were other issues with her job performance that came to the forefront during the hearing including:

  • A co-worker testified that she would go to the accounting department, sit down, and have non-work related conversations with department staff and did not return to her department when told to do so;
  •  A co-worker testified that she had received calls from reception looking for Ms. Rowley;
  • A co-worker saw her sitting in the showroom talking with sales personnel about non-work related topics and in the lunchroom outside of breaks or lunch texting.

What did the Adjudicator say?

The adjudicator framed the issue as follows:

The issue that I have to determine is whether there was a discriminatory reason or discriminatory factor for the applicant's termination, contrary to the Code. The applicant asserts that her family status, the parent of a special needs child, was the reason for the applicant's termination or a factor in it. My role is not to determine whether or not it was fair or just for the respondents to have terminated the applicant. The Tribunal has stated in many cases that whether or not a situation is unfair is not within its jurisdiction.

Having said that, the adjudicator found that Ms. Rowley had not proven that family status was the reason for, or a factor in, her termination. The adjudicator then went on to say:

The applicant has not been able to prove that Mr. Herrmann knew that she was receiving telephone calls in relation to her child, special needs or not, or was taking time off work to attend to her child. She has not been able to prove that Mr. Herrmann was aware that she was receiving personal telephone calls and taking time off work, even if he was not aware that they were related to her child, or that these were factors in deciding to terminate her.


Similarly, with respect to the applicant taking time off work, I find that it is more probable than not that Mr. Herrmann did not mention this as a reason for the applicant's termination. The applicant and the personal respondent both testified that the personal respondent authorized her absences on the two occasions that she was absent from work in relation to her son. It is unclear whether or not the applicant was absent for two whole or partial days, but the evidence is that the personal respondent knew the reasons why she was not at work and authorized those absences.

Adjudicator Renton then said that the respondents had provided a "reasonable explanation" for the termination and that its three witnesses testified, and Ms. Rowley admitted, that she:

  • Had been absent from her post;
  • Had been socializing in other departments; and
  • Had returned late from lunch at least twice.

In conclusion, Adjudicator Renton said:

It is clear that the applicant disagrees not only with the reasons that were provided to her about her termination, but also with management's directions given to her within the workplace. However, at the end of the day I am not satisfied that the applicant has met her onus of establishing a prima facie case of discrimination on a balance of probabilities that a violation of the Code occurred. Accordingly, the Application is dismissed.

What are the takeaways?

The employee failed to prove that there was a prima facie case of discrimination based on family status because she failed to prove:

  • That the employer knew that she was receiving telephone calls in relation to her child; or,
  • That she was taking time off work to attend to her child; and,
  • That the employer considered these factors in deciding to terminate her.

Instead, the employer did the right thing by:

  • Authorizing absences for the employee in relation to her child, special needs or not.
  • Advising the employee of inappropriate workplace behaviour during her probationary period, provided feedback and a reasonable time frame on how to improve and correct that behaviour.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Lisa Gallivan
Alison Strachan
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.