Justice Healy’s January 2015 decision in Patridge v Botony Dental Corporation is likely to be on many lists of top human rights law decisions already decided this year. Besides awarding damages under the Human Rights Code, Justice Healy’s decision discusses the test for family status discrimination (the first time an Ontario court has done so).
Lee Partridge worked as an office manager at Botony Dental Corporation. During a maternity leave, Botony advised Patridge she would return to work as a dental hygienist, beginning most days at 9am. Partridge insisted that she be reinstated as office manager. Partridge also alleged that Botony knew that Patridge could not begin work at 9am due to childcare arrangements. Botony eventually fired Partridge.
Partridge sued for wrongful dismissal and breach of the Human Rights Code. The court awarded her 12 months pay in lieu of notice. But, importantly, it also awarded her $20,000 damages for family status discrimination. This case is only the second Superior Court reported decision where a court has exercised its jurisdiction under section 46.1 of the Code to award damages for breach of the Code, the first being Wilson v. Solis Mexican Foods Inc.
Also, importantly, Justice Healy engaged in the ongoing debate over the test for family status discrimination. In Johnstone v Canada (Border Services), the Federal Court of Appeal held that a plaintiff must demonstrate the following to prove prima facie discrimination resulting from childcare obligations:
- that a child is under his or her care and supervision
- that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice
- that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible
- that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation
The employer can rebut a finding of prima facie discrimination by demonstrating that the workplace policy (in this case, the hours of work) is a bona fide occupational requirement.
In Ontario, the Human Rights Tribunal of Ontario applied a different test for family status discrimination in Devaney v ZRV Holdings Limited (albeit involving eldercare obligations). That test, which is fact-specific, was described as follows: “the applicant must establish that the respondents’ attendance requirements had an adverse impact on the applicant because of absences that were required as a result of the applicant’s responsibilities as his mother’s primary caregiver.” The Tribunal, like the Federal Court of Appeal, noted there is no discrimination if the care obligation is a choice. Both the Tribunal and the Federal Court of Appeal rejected the more restrictive test applicable in British Columbia from Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society: “when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of the employee.” Justice Healy applied the Johnstone test, without discussing either Devaney or the B.C. test.
To the extent there is any debate in Ontario law on the correct test, this decision seems to decide the matter. Though the Tribunal has not applied Partridge, it seems likely that many Tribunal members will feel themselves bound by a court decision applying the Code. As such, employers should be mindful that if an employee has childcare obligations and has made reasonable but, ultimately, unsuccessful efforts to find alternative solutions, the employer may be obligated to accommodate the employee’s needs, especially with respect to hours of work.
It also demonstrates that the courts are increasingly prepared to exercise their new-found power under the Code to award human rights damages. As such, employers should be aware that they may be liable for general damages in addition to wrongful dismissal compensation if discrimination is a factor in the employee’s dismissal.