Wednesday, October 10, 2012

Pregnancy, Human Rights, and Legal Options

I recently posted about another case involving a woman in B.C. dismissed because she was going to take maternity leave.

I've also posted before about the question of venue - when you're dismissed for discriminatory reasons, you have more than one option on where you can go, but you really have to pick one.

But where the issue is pregnancy leave, there are further choices, with different considerations, because it is a protected leave under the Employment Standards Act.  (As under the Human Rights Code, it is not illegal to terminate somebody's employment who happens to be pregnancy, so long as the termination is solely for reasons unrelated to the leave.  It's important to bear that in mind.)

The Choices


Being dismissed without just cause, a non-union employee is generally entitled to notice or pay in lieu of notice at common law.  This is the normal 'wrongful dismissal' framework, for which you can sue in Court.  Historically, you couldn't seek relief for discrimination from the Courts.  However, given relatively recent changes to the Human Rights Code, that has changed in Ontario.  In a wrongful dismissal case, a remedy can also be sought from Court for breaches of the Code.

The Tribunal

When you suffer from discrimination in employment on the basis of a prohibited Code ground, you can apply to the Human Rights Tribunal of Ontario (HRTO) for a remedy.  Pregnancy discrimination is, rightly or wrongly, regarded as discrimination on the basis of sex, which is prohibited.  (Nobody's saying pregnancy discrimination shouldn't be prohibited; however, there are occasionally awkward results of that particular framework.)

The Board

Pregnancy and parental leave entitlements are set out in Part XIV of the Employment Standards Act, 2000, and the ESA has an expansive anti-reprisal clause, which prohibits (among other things) intimidation, dismissal, or other penalties against an employee because the employee "is or will become eligible to take a leave, intends to take a leave or takes a leave under Part XIV".  A complaint can be made to the Ministry of Labour for breach of the ESA, and the Ministry's determinations can be appealed to the Ontario Labour Relations Board (OLRB).

NOTE WELL:  Under most circumstances, initiating one process will ELIMINATE or severely limit the availability of the other processes.  Speak to a qualified lawyer before making your choice, as the appropriate choice varies under the circumstances.

So what kind of factors are relevant in figuring out where to go?

Pros and Cons:  Remedies, Costs, and Burdens of Proof

The Courts

Court is complicated and expensive.  Practically speaking, you'll probably need to hire a lawyer to help you, and that isn't cheap.  That being said, if you're successful, you may be awarded a contribution to your costs.

The Courts' available remedies for Code violations are not quite as broad as those at the HRTO:  They can order restitution for losses, and compensation to injury for dignity, feelings, and self-respect.  They cannot order reinstatement, or other public interest remedies.

However, Courts have common law powers which may, in appropriate circumstances, extend to punitive damages.

Ultimately, however, the big advantage of a wrongful dismissal proceeding in Court is that one can be essentially successful even if the Code violation isn't established.  Suppose I'm fired without just cause, and I think it's because of my religion.  If I sue in wrongful dismissal and argue that the termination was discriminatory, then even if the Court doesn't accept that there was discrimination, I still may be entitled to pay in lieu of notice under contract or common law.


The Tribunal is cheaper, simpler, and faster.  And perhaps most importantly, there's the HRLSC, a government agency with a mandate to provide free legal assistance to applicants to the Tribunal.  Which is important, because the Tribunal doesn't award costs to the successful party - if you pay a lawyer, you aren't getting anything from the employer to compensate you for the legal fees.

The Tribunal has an expansive power to order a party to do "anything" to promote compliance with the Code.  This is usually in the form of a 'public interest' remedy - implement a policy, stop discriminating, etc. - and doesn't usually provide direct compensation to an applicant; however, it wrests control of the workplace away from the employer, which most employers are very resistant to, and therefore can be a useful threat or bargaining chip in the appropriate case.  It is possible, though rare, for reinstatement to be ordered.

The Tribunal cannot award punitive damages under any circumstances.

Importantly, the Tribunal can only order compensation for violations of the Code.  Where no unlawful discrimination or harassment is found, the HRTO cannot provide relief for an applicant, even if there was a wrongful dismissal.


This is where getting fired because of pregnancy is kind of different.  Again, the OLRB is simpler, and again, it doesn't have jurisdiction for costs, but it doesn't have an equivalent to the HRLSC.  Which means that, while a prudent litigant will usually hire a lawyer, legal fees are a lost litre.  It won't cost nearly as much as going to Court - usually - but you won't get a contribution to costs either.  (Mind you, that is a double-edged sword, cutting both ways.)

The Ministry's and OLRB's approach to these matters is a little more matter-of-fact.  They aren't looking at the moral elements of how appalling it is to discriminate.  They're simply asking:  Are we dealing with a leave, or eligibility for a leave, which is protected under Part XIV?  If so, was the dismissal a result of that leave or eligibility?  If so, what is the appropriate type of compensation?

So you won't receive an award of damages for injury to feelings, dignity, and self-respect.  You won't get punitive damages under any circumstances.  The OLRB doesn't strictly rule out aggravated damages, but it doesn't award them as a matter of course, as the HRTO does with injury to feelings, dignity, and self-respect.  Like the HRTO, if you don't succeed in terms of the specific elements, you won't get damages for wrongful dismissal (statutory termination pay is very modest by contrast to most wrongful dismissal suits).

For the OLRB, the "presumptive remedy for the unlawful termination of an employee who is on a pregnancy leave is reinstatement to employment, with compensation for wages lost to the date of hearing before the Board."  Reinstatement is regularly ordered by the Board.

So while the remedies available by the HRTO versus the OLRB aren't altogether different, the remedies typically awarded by them differ significantly.

But there's another major difference between the OLRB and the other options:  s.74(2) provides that "the burden of proof that an employer did not contravene a provision set out in this section lies upon the employer."

The reverse-onus is a very big deal in some cases.  At the HRTO, you need to be able to lead evidence satisfactory to support an inference that the termination was the result of a prohibited ground of discrimination (i.e. pregnancy) before the Tribunal will even look to the employer for an alternative explanation.  Leading evidence as to somebody else's motivation can be exceptionally difficult.  At Court, the onus is likewise upon the plaintiff.

Putting the onus on the employer means that the employer has an obligation from the outset to put forward its alternative explanation.  In the absence of a convincing explanation, the employee wins.

So...what kinds of cases are best for each venue?

When an employee has a strong wrongful dismissal case and potentially-significant contractual/common law entitlements, Court is often the best choice.  So, when I have an employee client who is a long-service employee without a contract significantly limiting termination entitlements, I hesitate to recommend any course of action other than a proceeding in Court.  In wrongful dismissal cases, it is relatively rare to see zero recovery.  (Just cause, failure to mitigate, or constructive dismissal cases are periodically 'all or nothing', but most wrongful dismissal cases are just a question of "how much".)  So if you have significant entitlements and a high probability of recovery that way, you need to seriously weigh the question of whether or not the cheaper and faster process and marginal additional remedies available from the HRTO, or the prospect of reinstatement from the OLRB, is worth the risk of zero recovery in the event that the Tribunal or Board isn't satisfied that the dismissal was a result of the pregnancy.

However, in the pregnancy cases, it is relatively infrequent to see employees with particularly substantial contractual or common law entitlements.  There are exceptions, but as a function of demographics and biology, pregnant employees aren't often at the high end of the Bardal factors.

In a case with relatively marginal common law or contractual entitlements, I'm more inclined to recommend the HRTO or OLRB.  There's less risk, less cost, and it's an easier process.  So where the additional benefits potentially available from a Court aren't that significant, it's not such a risk to forego Court.  As for which one is better...that depends on the strength of the evidence, and whether or not the employee wants reinstatement.  If it's a "he said she said", where the employee alleges that the employer expressly alluded to pregnancy as the reason for dismissal, I might be less concerned by the reverse-onus.  In a direct credibility contest, onus is relatively unimportant.  An adjudicator has to decide credibility, one way or another, and unless he or she concludes that neither side is credible (which occasionally happens), it won't come down to burden of proof.  However, if it's a case where we're trying to get an adjudicator to draw an inference, the OLRB might be the better route.  And if reinstatement is desired, the OLRB may be the better route for an employee dismissed due to pregnancy.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer. 

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