December 22, 2015

#familystatus: a Top Trend in 2015 Canadian Employment Law

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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 law. 

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 end.

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 earlier.


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. v
Communications, 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.

Lesson for Employers:

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 legal action.

Please click below for the full decision of the Ontario Court of Appeal:
Partridge v Botony Dental Corporation, 2015 ONCA 836 (CanLII)


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#familystatus: a Top Trend in 2015 Canadian Employment Law

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