Small Claims Court doles out maximum award for dismissal of new mother

November 25th, 2015 by

By Michelle Stephenson

In the recent decision, Bray v. Canadian College of Massage and Hydrotherapy, the Small Claims Court found that a new mom had been constructively dismissed by her former employer, and awarded her pay in lieu of notice, damages for breach of the Human Rights Code and punitive damages in excess of $42,700, which was then reduced to the $25,000, in accordance with the maximum amount which the Ontario Small Claims court has jurisdiction to award.

The plaintiff, Kelly Bray, claimed against her employer of 9 years, the Canadian College of Massage and Hydrotherapy, for wrongful dismissal.  Bray had returned from her maternity leave in October 2013 to find her hours had been reduced, her teaching responsibilities decreased, and her weekly pay reduced by about one third. Unhappy with the College’s behaviour towards her, which seemed to be the result of her status as a new mother, she filed a complaint with the Ministry of Labour. Shortly thereafter, she was informed that she would not be put on the schedule for the following term, and would only be considered for hours for the term starting in May 2014.

Bray withdrew her complaint with the Ministry of Labour and instead sued the College, seeking damages for:

  1. Wrongful dismissal;
  2. Discrimination under the Human Rights Code;
  3. Reprisal under the Employment Standards Act; and
  4. Aggravated and punitive damages.

The court found that as of January 1, 2014, Bray had been constructively dismissed by the College, as there had been a unilateral fundamental change to the terms of her employment.  In particular, she had not been scheduled for any work and would be receiving no pay. As she had been dismissed without cause, Bray was awarded $17,700 as pay in lieu of reasonable notice.

The court also concluded that Bray had been discriminated against on the grounds of sex and family status, contrary to the Human Rights Code. She had been treated adversely, which had never happened in her 9 years of employment, and which clearly stemmed from her having had a child and taken maternity leave. She was awarded general damages of $20,000.00 for injury to feelings, dignity and self-respect.

While the court held that the test for aggravated damages was not met, with there being no medical evidence of Bray’s mental distress, this was considered the “rare and exceptional type of case” where punitive damages would be appropriate.

At trial, the College had argued that the reduction in Bray’s hours had been a disciplinary measure in response to two complaints about her. However, the court found that the substance of both complaints was vague and that they had never been discussed with Bray, in particular when she had asked why her hours were being reduced.

The fact that this excuse was first brought at trial and not raised in the College’s pleadings was suspicious, and furthermore, the College had acted in bad faith by not providing Bray with an  opportunity to address these allegations about her honesty. For these reasons, Bray was entitled to punitive damages of $5,000.

The lesson for employers in this case is to be aware that employees returning from maternity or paternity leave are entitled to return to the position they held prior to the leave, or to a comparable position, and that a change in duties and responsibilities could constitute discrimination or constructive dismissal.

This case illustrates that pursuing an action in Small Claims Court, which is typically less expensive and more expeditious than proceeding through the simplified or ordinary procedure in Superior Court, is a viable option for employees in a situation like Bray’s. However, the disadvantage of Small Claims Court is that the maximum award available from this court is $25,000 (in Ontario), meaning that, for plaintiffs like Bray, the amount of damages may be significantly reduced. Ultimately, the decision of where to pursue your legal action will require you and your legal representative to weigh the associated costs, time, and likely outcome of your case.


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