Ontario Court of Appeal Upholds Wrongful Dismissal and Human Rights Damages
After Employee Faces Reprisal Upon Return from Maternity Leave

In the case of Partridge v. Botony Dental Corporation, 2015 ONCA 836, the Court of Appeal for
Ontario dismissed an employer’s appeal, affirming that a senior employee was wrongfully
dismissed and discriminated against upon her return from maternity leave. The decision reinforces
the significant legal protections afforded to employees under both the Employment Standards Act,
2000 (“ESA”) and the Ontario Human Rights Code (“the Code”).

Background

Ms. Lee Partridge was a senior employee at Botony Dental Corporation, where she had served as
the office manager for over four years and had more than seven years of total service. Upon her
return from her second maternity leave in July 2011, the employer unilaterally demoted her back
to her original position as a dental hygienist, which resulted in reduced hours and pay.

When Ms. Partridge objected to these material changes and reminded her employer of their
obligation under section 53(1) of the ESA to return her to the position she held prior to her
maternity leave, the employer engaged in a series of reprisal actions. Specifically, the employer
deliberately increased her work hours, knowing this would create a direct conflict with her
children’s daycare schedule. Just one week after her return, the employer terminated her
employment, alleging just cause.

The Law

The case centered on several key legal frameworks:

• Statutory Reinstatement: Under s. 53(1) of the ESA, employers are required to reinstate
  an employee returning from pregnancy or parental leave to the position they most
  recently held, if it still exists.
• Anti-Reprisal Provisions: Section 74(1) of the ESA prohibits employers from
  penalizing or dismissing an employee for asserting their rights under the Act.
• Discrimination based on Family Status: Under the Ontario Human Rights Code,
  employees are protected from discriminatory treatment related to their family status,
  which includes childcare obligations.
• Just Cause and Proportionality: Following the principles in McKinley v. BC Tel, the
  court must determine if dismissal is a proportional response to an employee’s actions by
  considering the full context of the employment relationship.

The Court’s Decision

The Court of Appeal upheld the trial judge's findings that Botony Dental did not have just cause
for dismissal. While the employer argued that Ms. Partridge had breached her obligations by taking

two patient day sheets and planning a competing business, the Court disagreed. The trial judge
found that her motivation for taking the records was to secure evidence of her reduced hours in
response to the employer's reprisals, not to compete and further, there was no evidence that any
confidential information was disclosed to third parties or that there was any harm to the patients
or to the employer’s business. Furthermore, the court noted that merely planning to compete is
not, by itself, grounds for dismissal.

The Court affirmed several key awards in this case. It upheld a 12 month notice period as
reasonable in light of Ms. Partridge’s 36 years of age, her senior position, her seven years of
exemplary service, and the fact that she was required to seek new employment while facing
serious allegations of dishonesty. The Court also awarded 20,000 dollars in human rights
damages after finding that the employer’s conduct constituted discrimination based on family
status. It noted that the disruption caused by changes to her schedule, which interfered with her
childcare obligations, resulted in harm to her dignity and self respect. In addition, the Court
ordered substantial indemnity costs, concluding that the employer had pursued unproven and
serious allegations of misconduct and had rejected a settlement offer that was lower than the final
judgment.

Takeaways

This decision serves as a clear warning to employers regarding the treatment of employees
returning from maternity and parental leave. First, reinstatement is mandatory. Employers cannot
use an employee’s leave of absence as an opportunity to demote them or restructure them out of
their role if that position still exists. Second, reprisals can be costly. Penalizing an employee for
asserting their rights under employment standards legislation may result in significant liability,
including damages under human rights law. Third, childcare obligations are protected.
Deliberately scheduling an employee in a way that conflicts with known childcare responsibilities
may amount to discrimination on the basis of family status. Finally, employers should be cautious
when alleging cause. Aggressively advancing unproven claims of dishonesty at trial can lead to
substantial indemnity cost awards.

Contact JPAK Employment Lawyers for more information on your rights regarding maternity
leave, reprisals, and workplace discrimination.