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Understanding Maternity Leave

Generally speaking, Ontario’s maternity and parental leave laws are intended to safeguard the rights of expectant and new parents, allowing them to take much-needed time off work without the fear of job loss. These regulations are primarily outlined in the Ontario Employment Standards Act (ESA) and are supported by the federal Employment Insurance Act, which offers benefits during these leaves. Employers are required to comply with these laws to properly support their employees during these important life transitions.

Maternity Leave vs. Parental Leave

Maternity leave, or pregnancy leave, is designated specially for birth mothers and lasts for up to 17 weeks. On the other hand, parental leave is available to all new parents, which might include birth mothers, fathers, and adoptive parents. Birth mothers who have taken maternity leave can additionally take up to 61 weeks of parental leave, while other parents are eligible for up to 63 weeks.

Parental leave can commence right after maternity leave or anytime within a 78-week period subsequent the child’s birth or adoption. While maternity leave centres on recovery from childbirth, parental leave is intended to give time for parents to bond with and nurture the new child. Both types of leave are job-protected and unpaid, but employees may qualify for Employment Insurance benefits during these periods.

Who is Eligible for Maternity Leave in Ontario?

In Ontario, a pregnant employee is eligible for maternity leave if they have been employed for at least 13 weeks before their due date. This eligibility applies regardless of whether the employee is full-time, part-time, permanent, or on a term contract, assuming that their employer is covered by the ESA.

It is important to note that the employee does not need to have actively worked during these 13 weeks; simply being employed is enough. This ensures that employees who may have been on sick leave or vacation during this period are still eligible for maternity leave. The leave can commence as early as 17 weeks before the due date or on the date of the birth if the baby is born prematurely. 

How does the ESA Protect employees’ Rights during Maternity Leave? 

The ESA offers several protections for employees on maternity leave. It guarantees the right to unpaid leave for up to 17 weeks. Employers must reinstate employees to their original job or a comparable position with the same pay and benefits when they return. During the leave, employees continue to accrue seniority and length of service and remain entitled to participate in benefit plans such as health insurance and pensions.

Generally, employers are not allowed to penalize or discriminate against employees for taking or planning to take maternity leave. These protections ensure that employees can take the much-needed time off for childbirth and recovery without unfairly risking their employment or career advancement.

What are the Notice Requirements for an Employee Planning to take Maternity Leave in Ontario?

Employees planning to take maternity leave must provide their employer with a minimum of two weeks’ written notice before starting their leave. If they need to leave work earlier than expected due to pregnancy-related complications, they have two weeks after stopping work to inform the employer in writing of the leave start date.

Employers might request a medical certificate confirming the baby’s due date. If an employee wants to change the start date of their leave, they must give new written notice at least two weeks in advance. Similarly, if they plan to return to work earlier than expected, they must provide four weeks’ written notice before the new return date. These notice requirements assist employers in preparing for the employee’s absence and enables them to plan accordingly.

Federal vs. Provincial Maternity and Parental Benefits

While the Ontario Employment Standards Act (ESA) ensures job-protected leave, the federal Employment Insurance Act (EIA) provides financial assistance through maternity and parental benefits. Eligible employees can receive Employment Insurance (EI) benefits, covering 55% of their average weekly earnings, up to a maximum of $638 per week for maternity leave.

For parental benefits, employees can choose between standard benefits (55% of earnings for up to 40 weeks) or extended benefits (33% of earnings for up to 69 weeks), with limits on the number of weeks one parent can receive. Employees must apply for these benefits through Service Canada and meet specific eligibility criteria, such as having worked a minimum number of hours in the past year. This financial support helps employees manage with the loss of income during their leave, allowing them to sufficiently focus on their new parental duties.

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Relevant Cases

Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471

This case, also referred to as Mowat case, addressed the key legal issue of whether the Canadian Human Rights Tribunal had the jurisdiction to award legal costs to successful complainants.

Ms. Mowat filed a human rights complaint alleging sex discrimination under the Canadian Human Rights Act. The Tribunal found in her favor, substantiating her sexual harassment complaint and awarding her $4,000 in damages for pain and suffering. Additionally, the Tribunal awarded her $47,000 for legal costs, with interest from the decision date to the payment date. This was a significant decision because it addressed the financial barriers that many complainants face when seeking justice.

However, this award of legal costs was challenged. The Federal Court of Appeal held in September 2009 that the Tribunal did not have the jurisdiction to award legal costs. This decision was upheld by the Supreme Court of Canada (SCC) in late 2011. The SCC’s holding emphasized that the Canadian Human Rights Act did not explicitly grant the Tribunal the power to award legal costs to successful complainants. This ruling has had significant implications for access to justice in Canada, particularly for individuals who might not have the financial means to afford the legal expenses associated with bringing a human rights complaint.

Ms. Chotalia, a prominent figure in mediation and arbitration, emphasized this issue during her time as Chairperson of the Canadian Human Rights Tribunal. She introduced Customized Procedures to help parties be heard without incurring substantial legal costs, acknowledging that the inability to award legal fees to successful complainants might impede access to justice. This case highlights the continuous challenges of balancing legal frameworks with practical access to justice and underscores the need for procedural innovations to support complainants.

T.P. v. Custom Granite & Marble Ltd., 2018 ONSC 4881

In the case of the plaintiff versus Custom Granite & Marble Ltd. (the respondent), the plaintiff alleged wrongful dismissal, non-compliance with the Employment Standards Act, and a breach of the Ontario Human Rights Code (OHRC). After an eight-day trial, the Court ultimately dismissed the plaintiff’s action.

At first, the plaintiff sought 12 months’ notice, but at the trial’s commencement, she reduced her claim to six months’ notice and further reduced the value and length of special damages during closing arguments.

The respondent argued for enhanced costs, citing the plaintiff’s conduct, which encompassed delaying trial preparations, not responding promptly to undertakings, and refusing settlement offers. However, the court did not find the plaintiff’s behaviour sufficiently “reprehensible” to warrant elevated costs, but it did agree to partial indemnity costs.

As such, the Court awarded the respondent $54,108.36 in costs. This decision was based on the reasonableness of the time spent by the respondent’s counsel, the nuances of the issues, and the unaccepted settlement offers. The Court emphasized that reasonableness is the guiding principle in fixing costs, ensuring that the awarded amount is fair for the unsuccessful party to pay.

The Court highlighted that the principle of reasonableness should guide the fixing of costs to ensure fairness and not impede access to justice. Although Rule 49’s cost consequences did not apply since the plaintiff recovered nothing at trial, the Court still considered the respondent’s settlement offers in its decision for awarding costs.

Elevated costs are reserved for clear findings of reprehensible conduct, which was not present in this case. Thus, the Court dismissed the plaintiff’s action against Custom Granite & Marble Ltd. and ordered her to pay the defendant’s costs of $54,108.36 on a partial indemnity basis. This decision exemplifies the importance of reasonableness in awarding costs and takes into account the conduct of both parties throughout the trial process.

M.G. v. Alexis Nakota Sioux Nation Board of Education, 2009 CHRT 34

In this case, the Canadian Human Rights Tribunal examined allegations of pregnancy-based discrimination. M.G., a teacher, filed a complaint under Section 7 of the Canadian Human Rights Act, citing sex discrimination due to pregnancy against her employer, the Alexis Nakota Sioux Nation Board of Education. M.G. was initially hired on a one-year contract from September 1, 2004, to August 31, 2005, and was subsequently offered another one-year contract starting September 1, 2005. In August 2005, she informed her principal of her pregnancy and her plan to take a seven-month maternity leave beginning January 31, 2006. Although the initial reaction was positive, her contract was unexpectedly altered to end on January 31, 2006, rather than covering the full year as initially agreed.

Following her maternity leave, M.G. was not offered a renewal of her teaching contract, while a substitute teacher, Ms. Georgeann Jones, was hired to replace her. The Tribunal determined that M.G. had established a prima facie case of discrimination. This means that, based on the initial evidence, it appeared that discrimination had occurred. M.G. was qualified for her position, her contract was prematurely terminated as a result of pregnancy, and her replacement was no better qualified. The reasons provided by the respondent, such as restructuring and the need for a different skill set, were found to be pretextual. The real motive was determined to be discriminatory, related to her pregnancy.

The Tribunal ultimately found that M.G.’s pregnancy influenced the respondent’s decision not to renew her contract and that the respondent failed to establish a bona fide occupational requirement (BFOR) to justify their actions. A BFOR is a legitimate, necessary qualification for a job that might justify certain “discriminatory” employment decisions. In this case, the Tribunal concluded that there was no legitimate job requirement that necessitated terminating M.G.’s contract due to her pregnancy. Consequently, the Tribunal ordered the respondent to implement systemic remedies, compensate M.G. for lost wages, and pay damages for pain and suffering.

This case exemplifies the importance of keeping non-discriminatory employment practices, especially concerning maternity leave and pregnancy, and reminds employers of their obligations under the Canadian Human Rights Act to accommodate employees without negative or prejudicial treatment based on pregnancy.

About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.