A recent decision from the Ontario Divisional Court confirms that an employee who is wrongfully dismissed while they are pregnant is likely entitled to relatively increased pay in lieu of reasonable notice at common law.[1]
When preparing for terminations, employers must carefully consider their employees’ particular circumstances in assessing severance options, where appropriate. If required to determine a former employee’s reasonable notice period, a judge will consider various factors at the time of dismissal which potentially affected the former employee’s ability to secure comparable alternative employment. This decision is an important reminder that pregnancy can be one of those factors.
The Courts’ Decisions
In Nahum v. Honeycomb Hospitality Inc.[2], the Ontario Superior Court awarded pay in lieu of five (5) months of reasonable notice of dismissal to a plaintiff with only four-and-a-half (4 ½) months of service. The fact that the plaintiff was, at the time of her dismissal, known by the defendant to have been (5) months pregnant was held to be an “important factor” in awarding such a lengthy notice period relative to the plaintiff’s short period of service.
The Superior Court held that it did not require particular evidence proving that the plaintiff’s pregnancy did in fact have a negative impact on her efforts to find another job after being dismissed. According to the Court, “that pregnant people face additional challenges when looking for work… is a fact so notorious or generally accepted as not to be the subject of debate among reasonable persons.” The Court did, however, state that pregnancy should not function to automatically lengthen the notice period in every case. Rather, there must be particular circumstances before the court grounding the belief that the dismissed employee’s pregnancy was “reasonably likely to negatively impact their ability to find alternative employment.” In this case, the plaintiff was at a late stage in her pregnancy and was looking for work in a competitive job market that was likely unwilling to accommodate her upcoming need for a maternity leave.
On appeal by the employer, the Divisional Court held that the Superior Court motion judge had correctly applied a long line of case law supporting the consideration, without supporting evidence, of pregnancy as a potentially relevant factor in assessing the period of reasonable notice of dismissal or pay in lieu. As stated by the Divisional Court, “courts have already taken judicial notice of the fact that pregnancy makes re-employment more difficult, adding weight to the view that it is a common-sense observation.”
Takeaway
This decision is an important reminder to employers that an employee’s pregnancy is not only relevant with respect to human rights considerations. Employers need to be mindful of the potential impact of an employee’s pregnancy in determining their reasonable notice period and corresponding entitlement to wrongful dismissal damages.
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[1] 2021 ONSC 1455 (Div Ct) (CanLII).
[2] Nahum v. Honeycomb Hospitality Inc., 2021 ONSC 7546 (CanLII).
