In Ontario, the Employment Standards Act, 2000 (“ESA”) gives eligible employees who are pregnant and/or new parents the right to take unpaid time off work. This leave includes important job-protection rights, including the right to return to:
- the same job the employee had before the leave began; or
- a comparable job, if the employee’s old job no longer exists.
Section 46(1) of the ESA provides eligible employees with a pregnancy leave of absence without pay (subject to certain timing requirements). Section 74(a)(viii) of the ESA also prohibits an employer from intimidating, dismissing, or penalizing an employee (including threatening) because the employee:
- is eligible (or will become eligible) to take pregnancy or parental leave,
- intends to take leave, or
- has taken leave.
The ESA further protects employees by placing the burden on the employer to prove that it did not violate these protections.
In addition, the Ontario Human Rights Code, RSO 1990, c. H.19, prohibits termination and adverse treatment based on discriminatory grounds such as family status and sex. This means employees cannot be terminated because they are pregnant, intend to become pregnant, or intend to take a leave of absence to care for a new child.
Termination During Leave vs. Termination Because of Leave
Despite these legal protections, some employees are terminated while on an approved leave. However, there is an important difference between being terminated because of parental leave or pregnancy, and being terminated while on leave.
Employers may terminate an employee for legitimate reasons unrelated to pregnancy or leave (for example, a department or office closure). However, the onus is on the employer to prove that the termination was unrelated to the employee’s leave. Failure to do so may result in remedies such as reinstatement and/or additional damages for discriminatory treatment.
Even where a termination is lawful, employees may still be entitled to reasonable notice (or pay in lieu) for the termination of their employment. It is always important to have a severance package reviewed by a lawyer before agreeing to any separation — including using a severance pay calculator to estimate what you may be entitled to.
Employees Terminated as a Result of Discrimination
The Supreme Court of Canada decision in B. v. Canada Safeway Ltd., [1989] 1 SCR, 1989 CanLII 96 (SCC), confirms that discrimination based on pregnancy is a form of sex discrimination.
“In retrospect, one can only ask – how could pregnancy discrimination be anything other than sex discrimination? The disfavoured treatment accorded Mrs. Brooks, Mrs. Allen and Mrs. Dixon flowed entirely from their state of pregnancy, a condition unique to a woman. They were pregnant because of their sex. Discrimination on the basis of pregnancy is a form of sex discrimination because of the basic biological fact that only women have the capacity to become pregnant.”
In M. v. Fashion Coiffures Ltd. et al., 2009 HRTO 1804 (CanLII), the applicant was awarded significant damages after a finding of discrimination based on pregnancy — including compensation for injury to dignity, feelings, and self-respect ($15,000), as well as loss of income and maternity benefits. The applicant was awarded $35,719.00 in total.
In H. v. Yorkville Sound Ltd. (2005), the court recognized that termination due to pregnancy may justify a longer notice period, given the added difficulty of seeking re-employment as a new parent.
Monkhouse Law Case: N. v. Honeycomb Hospitality Inc., 2021 ONSC 1455
In N. v. Honeycomb Hospitality Inc., 2021 ONSC 1455, Monkhouse Law represented an employee who was terminated while pregnant after only 4.5 months of employment. The Court accepted that the employee’s pregnancy made re-employment more difficult, and this helped support a longer notice period.
As a result, the employee was awarded:
- 5 months’ severance (despite only 4.5 months of seniority),
- compensation for lost benefits, and
- $22,000 in legal costs.
This case is an important reminder that pregnancy can be a factor in increasing reasonable notice, particularly where it impacts an employee’s ability to find new work after termination.
Key Takeaways for Employees
- Pregnancy and parental leave are legally protected. Ontario law provides job-protection rights for eligible employees who are pregnant or taking parental leave.
- It may be illegal to fire you because you are pregnant or taking leave. Termination connected to pregnancy or leave may amount to discrimination and/or reprisal.
- An employer may still terminate you while you are on leave for legitimate reasons unrelated to the leave — but the employer may have to prove the termination was not connected to your protected leave.
- You may still be entitled to severance. Even if the termination is lawful, you may be owed reasonable notice or pay in lieu.
- Get legal advice before signing anything. Having a severance package reviewed can help confirm whether your rights have been respected.
If you were terminated while pregnant or during maternity/parental leave, you may have legal options. Depending on the circumstances, the termination may involve wrongful dismissal, discrimination, or an unlawful reprisal under the ESA.
Before signing anything, consider getting legal advice. An employment lawyer can review the circumstances of your termination and any severance offer to help ensure your rights have been respected.
Contact us for a free 30 minute phone consultation to discuss your situation and next steps.