Pregnancy and Workplace Accommodation: The Botony Dental Case

In early 2015, the Ontario Superior Court of Justice released its decision in Partridge v. Botony Dental Corporation. This decision is a useful reminder both for employees as to their rights and employers as to their workplace obligations.

Ms. Partridge began work with Botony as a Dental Hygienist in March 2004 and was promoted to Office Manager in 2007. She was employed with the company for just over seven years prior to dismissal on July 19, 2011. During the tenure of her employment, Ms. Partridge twice took maternity leave: from June 2007 – July 2008; and again from June 2010 – July 2011.

While off on her second maternity leave, Ms. Partridge received a text message from Botony's owner, Ms. Jahul, to advise her that upon her return to work, she would no longer function as Office Manager but instead would again be a Dental Hygienist. In addition, Ms. Partridge was advised that her scheduled working hours would now vary and she would receive a reduced rate of pay.

Ms. Partridge reminded Ms. Jahul that she had the right to be reinstated to her pre-maternity leave position, with the same working conditions in effect. Ms. Jahul refused this assertion and required Ms. Partridge to return on the newly-defined terms. Ms. Partridge, however, did not return to work and Ms. Jahul responded by firing her for cause.

Ms. Partridge brought a court action seeking damages for wrongful dismissal and for the Defendant's violation of the Ontario Human Rights Code (for requiring her to work a variable schedule that conflicted with her childcare arrangements). The Court was receptive to Ms. Partridge's claim and found that Ms. Jahul's unilateral requirement for Ms. Partridge to return to work in a demoted position, on variable hours for a lesser rate of pay, and in direct conflict with her childcare needs, was an entirely unreasonable proposition.

The Court ordered that Botony must pay Ms. Partridge 12 months of salary in lieu of reasonable notice, as well as an additional $20,000 for the company's breach of the Human Rights Code

Two interesting take away points arise from this case:

Long Notice Period Awarded

At paragraph 77 of the decision the judge reproduced a chart of cases provided by Ms. Partridge's lawyer to show the amount of notice awarded in a handful of factually-similar cases. Ms. Partridge's lawyer wisely included, next to the amount of notice awarded in each case, the actual amount of time it took each particular plaintiff to again find a similar job.

At the time of judgment Ms. Partridge, despite best efforts to find a similar job, had still not been successful in this regard. Taking this into consideration, the court awarded a 12-month notice period. This length of notice period is arguably high for a younger employee (aged 36 years), with 7 years of service. It is also an important reminder that in the the 'one-month per year rule' does not apply, and with the right circumstances the notice period may be considerably longer.

Court Award of Human Rights Damages

The court ordered $20,000 for Botony's breach of the Human Rights Code, based on discrimination due to family status - taking into consideration the test recently set out by the Federal Court of Appeal in Johnstone v. Canada (Border Services).

The authority for an Ontario court to order a remedy for a breach of the Human Rights Code stems from a 2008-amendment to the act. Specifically, section 46.1(1) provides:

If, in a civil proceeding in court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:

  1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
  2. An order directing the party who infringed the rights to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

Despite the fact that this provision came into force almost 7 years ago, the courts had, until recently, been hesitant to use it. The first such court decision to award this remedy was in September 2013 in Wilson v. Solis Mexican Foods Inc.Botony serves as further proof that the courts are now comfortable in awarding this remedy, and employers should note the reality of this potential additional liability.

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