Given its rise in popularity in Canadian employment law
over the past year, it is only fitting that the subject of the last
Employment and Labour publication for 2015 consider a recent
decision relating to this evolving area of human rights
Several of our publications this year have outlined
several court's consideration of "family status"
under human rights legislation regarding an employer's
obligation to accommodate an employee with respect to childcare
duties. As demonstrated in the recent decision of the Ontario Court
of Appeal in Partridge v Botony Dental Corporation, 2015
ONCA 836 (CanLII), the jurisprudence in this area of human rights
law continues to develop.
The employer, Botony Dental Corporation (the
"Employer") appealed the trial
judge's determination that Ms. Partridge (the
"Employee") was wrongfully dismissed and
had been discriminated against pursuant to the Ontario human rights
legislation. The trial judge also found that the Employer violated
the employment standards legislation for refusing to reinstate the
Employee to her prior position once her maternity leave came to an
The trial judge found that
when the Employee returned from her second maternity leave, in
addition to being demoted from her office manager position (working
9 a.m. – 5 p.m.) to her original position as dental hygienist
(generally a 10 a.m. - 6 p.m. job), her Employer had discriminated
against her on the basis of "family status" and awarded
$20,000.00 in damages. The trial judge found that the Employer
deliberately adjusted the Employees work hours, knowing that this
change would create a conflict with her children's daycare
schedule and then terminated her employment, allegedly for cause,
one week after returning from maternity leave. The evidence at
trial was clear that the Employer knew that the Employee's
daycare arrangements would not permit her to work until 6 p.m. ever
since her return from her first maternity leave three years
Justice Roberts, writing for a unanimous Ontario Court of
Appeal, dismissed the Employer's appeal, upholding, inter
alia, the trial judge's award to the Employee for
$20,000.00 in compensatory damages for discrimination. She stated
that whether the legal framework with respect to discrimination
because of family status was as set out in Canada v
Johnstone, 2014 FCA 110
("Johnstone"), a decision of the Federal
Court of Appeal which outlined a four-part test for discrimination
on the basis of family status which was applied by the trial judge
in this case, or SMS Equipment Inc. vCommunications, Energy and Paperworkers Union, Local
707, 2015 ABQB 162 ("SMS
Equipment"), a 2015 decision of the
Alberta Queen's Bench which applied the three-part test for
discrimination generally, the result in this case is the same.
(Both of these decisions were discussed in detail in an earlier
publication and links are provided under "Related
Publications" on this page).
Justice Roberts stated that
the Employee's evidence at trial outlined a very complex
arrangement of relatives and others whom she had asked to pick up
her children from daycare as a result of her new work schedule and
therefore found no error in the trial judge's damage award
against the Employer for discriminating against the Employee on the
basis of family status. While the award of $20,000.00 was on the
high end, Justice Roberts held that the trial judge's finding
that the Employer engaged in willful misconduct was open to her to
find at trial based on the evidence.
As discussed in our previous publications regarding the recent
decisions of SMS Equipment,Johnstone and
Clark v Bow Valley College, 2014 AHRC 4, the outcome in
this decision demonstrates that employers must be mindful of their
obligation to accommodate employees with legal childcare
obligations, to the point of undue hardship. Failure to do so can
result in costly damage awards under human rights legislation and
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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