What are the Maternity and Parental leave Laws?

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.