October 15, 2015 By: Stephanie Lewis
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Earlier this year, the Ontario Small Claims Court released an important decision for new mothers. In Bray v Canadian College of Massage and Hydrotherapy, the court awarded damages against an employer that had changed a woman’s terms of employment upon her return from maternity leave in violation of the Ontario Human Rights Code (the “Code”).

Kelly Bray had been working for the Canadian College of Massage Therapists as a massage therapy instructor. Prior to her maternity leave, her duties included teaching classes, supervising clinics and supervising outreach programs. While her schedule varied depending on the teaching term, she worked an average of 25 hours a week.

When she returned from her maternity leave, she found that both her hours and level of responsibility had been reduced. Following this discovery, and an email from the College’s Director of Education questioning her ability to handle “even being in 4 classes and having to be a mother at the same time”, Ms. Bray filed a complaint with the Ministry of Labour. 

Ms. Bray’s situation at the College worsened and she was advised that the College did not require her services for the following term. In light of this treatment, Ms. Bray withdrew her Ministry of Labour Complaint and brought an action for wrongful dismissal in Small Claims Court. In particular, her claim alleged that the College’s actions constituted constructive dismissal and discrimination under the Code.

The Code provides that every person has the right to equal treatment in their employment without discrimination, based on a number of protected grounds, including sex and family status. Both of these grounds have been found to apply to mothers returning from maternity leave.

Deputy Judge Winny of the Ontario Small Claims Court found in Ms. Bray’s favour. He held that the College’s actions constituted constructive dismissal, discrimination and bad faith conduct. He also held that Ms. Bray’s sex and family status were factors that led to her poor treatment by her employer.

Deputy Judge Winny’s award of damages is of particular significance. In 2008, the Code was amended to allow courts to award damages for violations of the Code in wrongful dismissal cases. In other words, employers who discriminated against their employees could be found liable by a court to pay the employees money as compensation for the improper treatment. Although very few judges have made such awards, Deputy Judge Winny did.

Justice Winny assessed Ms. Bray’s damages at $42,700, which included $20,000 for damages under the Code for injury to feelings, dignity and self-respect that was suffered as a result of her employer’s discrimination. Ultimately, the award was reduced to $25,000 because that is the maximum award available in Small Claims Court.

Employers should be cautious to ensure the fair treatment of employees returning from maternity or parental leaves. Conversely, employees who feel they have experienced unfair treatment should be sure to canvass any areas of concern with their lawyer to ensure that human rights issues are appropriately considered.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Employment Law