Michael Ford (post until Oct. 31/19)
Employment & Labour

Discrimination ruling good news for employees

A recent Ontario Superior Court of Justice ruling awarding both wrongful dismissal damages and human rights damages was “a big win for the employee,” says Toronto employment lawyer Doug MacLeod.

In an interview with AdvocateDaily.com, MacLeod says Partridge v. Botony Dental Corporation, 2015 ONSC 343 (CanLII) is believed to be the second-ever instance of general damages being awarded under the Human Rights Code in addition to wrongful dismissal damages.

The case deals with a woman who sought damages in relation to the alleged wrongful termination of her employment with Botony Dental Corporation, reads the decision. The defendant alleged it terminated the woman’s employment for just cause.

The woman began her employment with the dental clinic in March 2004 as a hygienist, and in 2007, her role changed to office manager, says the decision. On maternity leave in 2011, the woman was set to return to work in July and was told she’d be booked into the hygienist schedule with fewer hours. 

After requesting to work during hours that did not conflict with her daycare arrangements, the woman alleges she was terminated without reasonable notice. She also claimed the dentist discriminated against her by scheduling her to work longer hours which conflicted with her child care needs.

Justice Susan Healey found the woman was wrongfully terminated and discriminated against on the basis of family status. She ordered $42,517.44 or 12 months compensation be paid as damages for wrongful dismissal, and $20,000 be paid for a breach of the Human Rights Code.

“The discrimination experienced by (the woman) clearly did injury to her dignity, feelings and self-respect, as her testimony made clear that she took great pride in her job and the efforts that she had made on the defendant’s behalf. At the time of her testimony in this trial, she remained visibly emotionally affected by the ordeal," writes Healey.

“The court’s censure is warranted by way of an award that will act as a deterrent to employers who are unwilling to accommodate childcare arrangements, except where legitimate, justifiable grounds exist for being unable to do so,” says the ruling.

MacLeod, principal at MacLeod Law Firm, says the case is notable in that it deals with both human rights and wrongful dismissal damages, which isn’t often seen.

“Since 2008, an employee who believes they have been discriminated against has had the ability to either file an application with the Human Rights Tribunal or claim for human rights damages in a wrongful dismissal action, and for whatever reason, there have been very few cases that have gone to court,” says MacLeod. “So although there’s many, many decisions coming out of the Human Rights Tribunal every year, this is only the second time a case has been taken to a court in six and a half years.”

When acting for an employee, employment lawyers examine whether it’s likely the client will get higher damages from the tribunal or from a court, says MacLeod.

“Theoretically, the damages should be the same whether you go to the tribunal or to court, but there’s so few cases in court that it’s hard to know whether they’re going to follow previous tribunal decisions,” he says. “At the tribunal, there is a two-part test the adjudicators consider when determining damages and that test wasn’t referred to in this case, so it’s unclear whether the courts are going to adapt tribunal jurisprudence when assessing damages for breaches of the code.”

As far as the $20,000 damages for breach of the code is concerned, MacLeod notes, “Based on the limited information available in the decision, the award seems higher than most adjudicators would have awarded under the code.

"It is impossible to predict what kind of influence the Partridge decision will have on other trial judges who are asked to award wrongful dismissal and human rights damages in the future, but the case seems to represent a positive step forward for employees," says MacLeod. “This was a big win for this particular employee."

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