March 2021 – Barry Fisher's Employment Law Blog

$120,000 in Partial Indemnity Costs for a 2.5 Day Trial :

In Battiston v Microsoft ( 2021 ONSC 1341) Faieta J. awarded wrongful dismissal damages of $567,000 after a trial lasting 2.5 days.

In the course of the award, the following interesting points were made:

1) The fact that the Plaintiff did not win on every disputed issue was not relevant in determining the quantum of costs.

This is what the judge said:

Who was the Successful Party?

[8] A successful party is presumed to be entitled to their costs.

[9] The defendant submits that costs awarded to the plaintiff should be reduced by 20% as it was successful on some of the issues – namely, the issue of the plaintiff’s bonus, merit increase and performance incentives issued in the final year of his employment as well as the valuation of the plaintiff’s bonus and merit increase during the notice period.

[10] In my view, it makes little sense to find that success was divided when the amount awarded by this court exceeded the offers to settle made by the plaintiff.

2) For the losing party to not submit their own Bill of Costs when attacking the winners is a dangerous technique. This what the Judge said :

Similarly, although there is no obligation to do so, the defendant did not file its own Bill of Costs to illustrate what amount of costs it would have reasonably expected to have been incurred by the plaintiff: as necessary to incur to respond to this claim: Smith Estate v. Rotstein, 2011 ONCA 491 (Ont. C.A.), para. 50. Given its failure to deliver its own bill of costs, the Applicant’s challenge regarding the amount of costs claimed by the Respondent is “no more than an attack in the air”, as former Chief Justice Winkler stated in Risorto, at para. 10.

When I was in that situation as the winning lawyer and the loser said that he spent less time on the file than me , I would respond ” Well maybe that is why I won and you lost.”

2) Where the Plaintiff tenders a Rule 49 Offer to Settle, but upon inquiry by the Defendant, refuses to set out a number for costs , the Court may exercise its jurisdiction to not award substantial indemnity costs even though the Plaintiff beat their own Rule 49 offer.

This is what the Judge said:

[18] The defendant submits that the Rule 49 offers to settle were “rendered improper” as a result of the plaintiff’s refusal to provide an estimate of its costs. On November 28, 2019, Ms. Lucifora advied Mr. Gorsky that their Rule 49 was still open for acceptance and offered to provide a quote for their legal fees. Mr. Gorsky requested that information. On the following day, Mr. Monkhouse responded that both parties exchange their current partial indemnity costs. Mr. Gorsky refused to provide such information. The plaintiff did not provide its costs to Mr. Gorsky.

[19] In Rooney (Litigation Guardian) v. Graham (2001), 2001 CanLII 24064 (ON CA), 53 O.R. (3d) 685 the Ontario Court of Appeal concluded that an offer to settle was a valid Rule 49 offer even though its terms included a provision for ongoing partial indemnity costs that introduced “some measure” of uncertainty. However, the court stated, at para. 51, that:

A party to whom an offer is made must be able to evaluate the offer at any time after it is made in order to decide whether to accept it. Thus, the party making the offer must be forthright and candid in disclosing the amount of solicitor- and-client costs incurred. A failure to cooperate may be dealt with by the trial judge’s overall discretion on costs.

[20] I find that the plaintiff failed to be forthright when asked to disclose the amount of costs requested under the plaintiff’s Rule 49 offer. Such conduct does not promote settlement and thus is inconsistent with the purpose of a Rule 49 offer. In the circumstances, it would not be advancing the interests of justice to award substantial indemnity costs to the plaintiff in respect of either Rule 49 offer.

My Comments :

What the Judge maybe did not appreciate is that if the Plaintiff had put forward a number for costs before the Defendant had accepted the Rule 49 offer , then the Defendant would have been in position to try to negotiate a total settlement without deciding whether or not to accept the offer. Rule 49 offers can be accepted without agreeing on costs because you can accept the offer and if you cannot later agree on costs then the Court will decide.

This is the type of bargaining and negotiation that goes on the the real world.

I do not think it is necessarily appropriate for the Court to involve themselves in this discussion. Remember that the Defendant also refused to tell the Plaintiff how much he had already billed his client.

The Plaintiff probably wanted to know what the Defendant had been billed, and if that amount was reasonable then the Plaintiff would have agreed with that amount. In that situation it would be hard for the Defendant to argue that the Plaintiff’s bill was excessive .

Note that even before the Judge, the Defendant refused to tell the Court how much they had been billed. Why, you may ask?

If you want a copy of this case, email me at barryfisher@rogers.com .

Plaintiff Awarded $34,000 for Claim and $22,000 in Costs:

In Nahum v. Honeycomb Hospitality Inc., 2021 ONSC 1988 (CanLII)
Justice Akbarali rejected the Defendants claim that because the Plaintiff recovered less than the $35,000 Small Claims Court limit, she should be denied costs for her Superior Court action.
The judge rejected this proposal as she found that it was reasonable for the Plaintiff to start a Superior Court Action. In determining the award of costs she considered the following factors:
1) Neither side beat their own Rule 49 offer.
2) The defendant’s partial indemnity costs were $21,000
3) The Plaintiff did win the case at 5 months notice while the defendant proposed 2 months.
4) There was a moderately complex issue of the plaintiff’s pregnancy and how it affected the notice period and a trial was required to determine the issue.
5) Each side acted reasonably in the litigation.

If you want a copy of this case email me at barryfisher@rogers.com

Defendant Cannot Plead its Rejected Settlement Offer :

In Renzone v Onyx Homes ( 2020 ONSC 7722) Master Josefo stuck from the Statement of Defence a plea that the defendant had offered a terminated employee the chance to return to work after being dismissed so that she could work out her notice period. The Defendant presumably wanted to rely on this refusal as a basis for arguing that the Plaintiff failed to mitigate her damages, relying on the SCC decision in Evans v Teamsters ( 2008 SCC 20).

The Master ruled that this was clearly an offer to settle, and therefore was not admissible as evidence at a trial and therefore could not be plead.

The Master noted that the offer was labelled ” Without Prejudice “, that it contained a confidentiality clause and required the Plaintiff to sign a release.

My Comment:

If an employer wants to trigger a Evans v Teamsters defence, in my opinion they must set out clearly that the ex employee is free to return to work for the balance of the notice period without conditions. In other words, if the employee does choose to return to work, then they are still free to continue the lawsuit. If the employee refuses to return to work, this may well trigger a valid defence of a failure to mitigate.

This is how the Master said it:

Observations on Mixing Without Prejudice and With Prejudice Communications:

[25] The May 29th letter tried to be, in my view, “all things to all people”. It was, for reasons herein, an offer of compromise. It thus falls squarely within settlement privilege. Yet it also appears to me that defendant was trying to position itself in this within litigation, after it had retained counsel and after it unilaterally imposed new terms on the plaintiff which were to start within a few days but for her commencing sick leave first. This one letter confusingly tried to impart several different messages, including, significantly, I emphasize, that of settlement. Yet if settlement failed, another purpose of the May 29th letter was, as was specifically pleaded at paragraph 51 of the defence, the defendant trying to establish a “failure of mitigation” argument on the part of the plaintiff. Whether such would be viable over three weeks after the planned imposition of new terms of employment is an open question.

[26] Yet where the defendant ran into difficulties, in my observation, was in attempting to combine different elements and messages in the one letter. One take-away may be that, in future, counselshould not mix “with prejudice” and “without prejudice” elements in the same one item of correspondence. Writing separate letters or emails, each with their individual and clear messages, and each either clearly on or off the record, with or without prejudice, may assist to avoid such confusion.

If you like a copy of this case send me an email at barryfisher@rogers.com.

Persistent Comments to Female Employees About ” How Beautiful You Are ” Leads to Dismissal For Just Cause:

In a CLC Unjust Dismissal Adjudication ( Lawrie v Bell Media, 2020 CarswellNat 504) Adjudicator Novick had a situation where a 22 year service news anchor was terminated because even after receiving a warning letter , he persisted in sending numerous emails and Facebook messages to female co-workers regarding how gorgeous they were or how lucky their husbands or boyfriends were.

As the Adjudicator noted that ” The messages were not vulgar or explicitly sexual, but were often flirtatious, coy and containing sexual innuendo.”

The adjudicator noted not only that a number of woman complained, but that the the activity continued even after a final warning was issued.

Ms Novick upheld that the dismissal was not unjust.

This is how the Adjudicator summarized the evidence:

12 Mr. Laurie does not deny making the comments referred to, many of which were in written form and filed at the hearing. While the messages will be outlined in detail below, recurring themes appeared. Mr. Laurie repeatedly referred to his colleagues as being “gorgeous” or “pretty”, sometimes stating “you are ridiculously beautiful” or “you looked perfectly gorgeous yesterday”. Many comments state that the Complainants’ husband or boyfriend is “the luckiest guy around”. There are innumerable messages in which the women were referred to with pet names or nicknames such as “princess” or “bella”. Some exchanges involve Mr. Laurie offering meals out at restaurants, trips to exotic places or bottles of wine. The messages were not vulgar or explicitly sexual, but were often flirtatious, coy and containing sexual innuendo.

13 Most notable was the sheer quantity of messages sent, which varied by the year and the level of work interaction he had with each of the Complainants. They were often sent daily and occasionally several times each day. Many messages were sent late at night, well after the evening team’s shift ended. The messages would often begin with a compliment regarding the womens’ work performance and would then reference their appearance or attractiveness. A typical example of this type of message is – “you did a super job yesterday and you looked gorgeous!”.

This is how she dealt with issue of the issue of the appropriate penalty:

Was dismissal the appropriate penalty?

215 Mr. Fox submitted that while Mr. Laurie’s conduct may have justified some discipline, the Employer failed to take the “proportional approach” set out in the Mckinley case and those that followed. I find that Mr. Laurie’s conduct justified his dismissal from employment with Bell Media. His messages to the women in question were persistent, unwelcome and degrading, and caused them to feel awkward, intimidated and very uncomfortable. While any one or even a series of the messages viewed in isolation may not qualify as serious misconduct that would justify a dismissal for cause, the sheer volume and frequency of flirtatious messages sent to various women, in contravention of the serious written warning he had earlier received, persuades me that the “bond of trust” between Mr. Laurie and the Employer has been broken.

216 Mr. Laurie’s testimony at the hearing made it clear that he understood from the warning letter he had received in 2013, that he should not continue his behaviour of commenting on his colleagues’ appearance and attractiveness. The fact that the complainant on that occasion chose to remain anonymous has no bearing on the seriousness of the warning received. The letter states that failure to “conduct himself professionally at all times” will result in further discipline up to and including termination of employment. If there was any doubt that he was being given “one more chance”, Ms. Freeman made it clear when she met with him personally to discuss the warning that if he repeated the conduct, he would be fired.

217 Mr. Laurie conceded under cross-examination that many of the comments he made, that were filed into evidence at the hearing, contravened the warning that he received. His demeanour at the hearing while under cross-examination was not one of a wrongdoer acknowledging his mistakes and seeking another chance. Instead, he was defensive and sarcastic, and refused to admit facts that the written documents made clear, such as his many apologies to the women for commenting on their appearance and attractiveness. He came across as someone who felt that he had been wronged, and himself deserved an apology. I accept the Employer’s contention that he has not accepted responsibility for his actions.

218 Mr. Fox argued strenuously that “the punishment should fit the crime” and that while the comments made by Mr. Laurie were inappropriate and perhaps unwanted, they do not justify the dismissal of a senior member of the newsroom with twenty-two years of seniority. He cited the following comments by Justice Iacobucci in McKinley, supra –

An effective balance must be struck between the severity of an employees’ misconduct and the sanction imposed. The importance of this balance is better understood by considering the sense of identity and self-worth individuals frequently derive from their employment.

(at para.53)

219 I have no doubt that Mr. Laurie derived a sense of identity and self-worth from his job. He was a valued employee and an important contributor to the organisation. I also understand and agree with the courts’ direction that a “proportional approach” should be taken in assessing whether the sanction imposed by an employer is proportional to the misconduct in question. As instructed by the Ontario Court of Appeal in the Dowling v. Ontario (Workplace Safety & Insurance Board), supra, decision, I have examined the nature and circumstances of the misconduct, and have determined that Mr. Laurie’s actions were “incompatible with the fundamental terms of the employment relationship” and that the “bond of trust has been broken”.

220 I make my findings above based solely on the evidence before me. I do note, however, that the four women who testified also advised that other female colleagues had shared similar experiences with them, and that some had shared inappropriate messages that they had received from Mr. Laurie. The evidence suggested that the feeling around the newsroom was that the Employer was aware of this behaviour, and that “nothing was being done about it”. The legislation and case law cited above make it clear that an employer has an obligation to provide a safe and harassment free workplace for all of its employees. This is a duty that every employer must take seriously. This obligation must clearly be balanced against the notion of progressive discipline and the requirement to treat employees whose actions may threaten this safety fairly. I find that when the evidence clearly supports that an employee has ignored a serious warning and shows no sign that he has taken responsibility for his actions, as is the case here, his dismissal from employment is justified.

221 For the reasons cited above, I conclude that the Employer’s decision to terminate Mr. Laurie’s employment was not unjust. I therefore dismiss this complaint.

Termination Clause Violates Canada Labour Code Thus Reasonable Notice Applies :

In Sager v TFI International ( 2020 ONSC 6608) Davies J. reviewed a termination clause which was governed by the Canada Labour Code and found it to be unenforceable. Almost all the previous attacks on termination clauses, at least in Ontario courts, have been under the Employment Standards Act of Ontario.

On its face, the contract provided for more termination and or severance pay than would ever be required under the CLC. Remember that the minimum requirements under the CLC are very minimal, nothing like the ESA .

The Plaintiff’s contract provided for certain benefits in addition to his salary, including a car allowance of $900 per month, participation in a group insurance plan and pension plan, and participation in a bonus program with a value of up to 30% of his base salary.

Section 231(a) of the CLC says that the employer cannot “reduce the wages or alter any other term or conditions of employment” during the notice period.

The notice period under the CLC is only two weeks. The rest of the statutory requirement is severance pay.

The termination clause said that the only payment that the plaintiff would get on termination pay was as set out in the agreement, which meant that he would not receive his car allowance, benefits , bonus or pension for the two week period following his dismissal.

The Court therefore found that the termination clause violated Section 231(a) of the CLC and therefore was null and void.

That section reads as follows:

231 Where notice is given by an employer pursuant to subsection 230(1), the employer

(a) shall not thereafter reduce the rate of wages or alter any other term or condition of employment of the employee to whom the notice was given except with the written consent of the employee; and

This is what the Judge said :

[19] The termination clause of Mr. Sager’s contract intends to limit TFI’s obligation to. a single lump sum payment. The clause does not say that it is intended to be inclusive of the statutory requirements for severance and termination pay only. It says the lump sum payment is inclusive of all requirements under the CLC. If the lump sum payment is treated as inclusive of all requirements under the CLC, it excludes any payment on termination for Mr. Sager’s pension, car allowance or bonus, which were all the terms and conditions of Mr. Sager’s employment. It would also exclude the continuation of Mr. Sager’s benefits during the notice period. In my view, the meaning of the agreement it clear: Mr. Sager was entitled to a payment equal to three months of his base salary and nothing more during the notice period. This amounts to a change in Mr. Sager’s terms of employment during the notice period, which is inconsistent with s. 231(a) of the CLC.

[20] I, therefore, find that the termination clause in Mr. Sager’s employment contract isvoid and the presumption that Mr. Sager is entitled to reasonable notice on termination has not been rebutted.

This is, in my opinion, a remarkable decision for the following reasons;

I am not aware of any other case where the CLC has been used to overturn a termination provision.

Even though the cash payment required by this clause greatly exceeded the requirements of the CLC, simply because it left out some relatively minor compensation items, it was found to be null and void.

The ESA has a similar provision in Section 60 (1) (a) which reads as follows:

(1) During a notice period under section 57 or 58, the employer,(a) shall not reduce the employee’s wage rate or alter any other term or condition of employment;

This gives employees another method of setting aside even those termination provisions which, on the surface, seem to exceed the ESA minimums.

OCA Makes New Distinction Between Types of Shareholding While Also an Employee :

In Mikelsteins v. Morrison Hershfield Limited ( 2021 ONCA 155) the OCA was required by the SCC to reconsider their earlier decision in light of Matthews v Ocean Nutrition case. In the original case the OCA refused to apply a employment based analysis to a provision in a shareholders agreement that forced the employee/shareholder to sell his shares immediately upon termination, which had the effect of denying substantial dividends which he would have been entitled to had he been given his common law right of reasonable WORKING notice.

Upon due consideration, the OCA decided they were still correct and said that because the Plaintiff had originally bought his shares with his own money it was not considered by the Court to be part of his employment compensation. As such his entitlement to dividends during the notice period was not to be implied and the language of the shareholders agreement clearly denied him post termination payments.

Here is the relevant extract :

[11] One very important factual point underpins these two questions. They are both directed at determining the rights of the employee qua employee. That is, they are both directed at determining the damages that an employee is entitled to arising from a breach of the contract of employment.

[12] In this case, the respondent’s claim to the dividend does not arise from the breach of his contract of employment. Rather, we were determining the respondent’s rights as a shareholder of Morrison Hershfield Group Inc. pursuant to the Shareholders’ Agreement. In that regard, it is of importance to remember that the respondent did not receive his shares in Morrison Hershfield Group Inc. as some form of compensation as an employee of the appellant. To the contrary, the respondent was given the opportunity to use his own funds to purchase shares in Morrison Hershfield Group Inc. When he elected to do so, the respondent’s rights regarding his shares were dictated by the terms of the Shareholders’ Agreement.

[13] The decision in Ocean Nutrition does not change the proper analysis to be applied to the issues raised on the appeal in this case. The respondent’s entitlement respecting his shares falls to be determined by his rights as a shareholder of Morrison Hershfield Group Inc., not by his status as a terminated employee of the appellant. To conclude otherwise would run the risk of interfering with the established law on the rights and obligations of shareholders, much of which is codified in corporate statutes such as the Business Corporations Act, R.S.O. 1990, c. B.16 and the Canada Business Corporations Act, R.S.C. 1985, c. C-44.

[14] Just by way of example, s. 32 of the Business Corporations Act provides that a corporation may purchase or redeem any redeemable shares issued by it, which, in one sense, is what happened in this case. As we observed in our decision, there are very good reasons why an employee-owned corporation would not wish an employee to be able to exercise all of the rights of a shareholder once their employment is terminated.

Comment : This distinction between how and why he acquired his shares seems to me to be too cute by half. Presumably had he not purchased the shares he would have demanded and received a higher salary. This will further complicate the law unnecessarily.

The OCA seemed to not want to upset the corporate governance problems that would arise from having a dismissed employee having a say in the operation of the enterprise. However I seriously doubt that the Plaintiff wanted to attend shareholders meetings. In any event his minority shareholding would have no practical effect on the operation of the enterprise. All he wanted was his MONEY.

In light of this decision, it would seem foolish for any employee to want to own shares in his non public held employer as he or she runs the risk of substantially reducing his or her rights on termination.

It seems sad that the OCA sees corporate shareholder rights as more important than employment rights.

Court Awards $60,000 in Costs for a One Day Trial :

In Yee v HBC ( 2021 ONSC 1651) Justice Dow ordered HBC to pay costs to the Plaintiff for a one day trial $60,000 plus disbursements and HST in a wrongful dismissal action where the client got a judgement for about $95,000. I am advised by Plaintiff’s counsel , Daniel Lublin, that no discoveries were conducted by either side.

He did so in spite of any relevant Rule 49 offers because the Defendant failed to disclose a highly significant document until 11 months after they filed the Defence. The defence relied upon a earlier contract presumably with language that limited the notice period. Only after the late disclosure of the second contract did the first contract become irrelevant.

The Judge relied on section 57.01(1)(f) in finding that higher than partial indemnity costs can be awarded where the ” losing party has engaged in behaviour worthy of sanction”

If you want a copy of this case send me an email at barryfisher@rogers.com.

Failure to Interview Plaintiff Before Terminating for Just Cause Problematic:

In Czerniawski v Corma ( 2021 ONSC 1514) Justice Backhouse dealt with an allegation of just cause involving a a 54 year old assembler with 19 years service.

The Plaintiff got in a shouting match with a co-worker over a work related issue. That worker complained to the supervisor who told the HR manager who told the supervisor to send the Plaintiff home because he was involved in two incidents .

The Plaintiff was not pleased and asked what he was being accused of. No answer was given other than the company was going to investigate. The Plaintiff refused to leave the premises. The Company called the police. Once the police arrived the Plaintiff left without incident.

Having been told to remain home until called, after four days of hearing nothing the Plaintiff returned to the workplace to deliver a letter stating that he had not threatened anyone and demanding a formal apology.

The next day he was fired for engaging in threatening behaviour and insubordination by refusing to go home when ordered and for returning to the workplace without permission.

What concerned Justice Backhouse the most was the Defendant’s failure to interview the Plaintiff about the allegations, in fact to even tell the Plaintiff exactly what the allegations against him were. Instead their ” investigation” consisted of getting statements from other workers and supervisors. They then simply chose to believe those witnesses.

The Defendants’ case seemed to rest on the theory that the other workers were intimidated by the Plaintiff and feared he would be violent. However the Judge found that this evidence was ” overstated ” and that there was no objective evidence which would lead one to believe that the Plaintiff would use or threaten violence in the workplace especially as there was no history of such behaviour.

In finding that the Plaintiff’s conduct was worthy of discipline but not summary discharge, Justice Backhouse said as follows:

[34] Had the plaintiff been allowed to respond to the allegations as he requested on March 7, 2019 or as part of the investigation, the employer’s decision may have been more proportional to the misconduct which occurred. While having to call the police when he refused to leave the workplace was undoubtedly upsetting to co-workers and caused a disruption of the workplace, the plaintiff returned to his own work station after the meeting with Mr. Sandras and Mr. Beliski. He cooperated with the police when they arrived, left peaceably and there were no threats, intimidation or violence.

[38] In this case, the plaintiff was a conscientious employee and there were no prior incidents of violence. Any prior negative interactions with co-workers had not previously been brought to the plaintiff’s attention or been the subject of discipline.1 Progressive discipline for this incident such as a disciplinary letter or suspension would have sent the message that his behavior was unacceptable and given him a warning that a continuation could result in his dismissal.

[39] In Geluch v. Rosedale Golf Assn. Ltd., [2004] O.J.NO.2740, the Court held:

1 On November 30, 2016, a warning letter was placed on the plaintiff’s file in regard to an outburst in the presence of his supervisor but no discipline was imposed. Before an employee is terminated for cause, he or she should be advised that the misconduct is a matter of serious significance and its continuation could place his or her employment in jeopardy.

[40] A number of cases have held that it was wrong for an employer to refrain from interviewing the plaintiff to obtain his version of events. (Peoples v. Ontario, 173 A.C.W.S. (3d) 165 at para 18; Poulos v. Toronto & Region Conservation For The Living City, [2009] OJ NO 6066; Ludchen v. Stelcrete Industries Ltd., 2013 ONSC 74945 at paras 68 and 79).

[41] The defence relies upon Render v. ThyssenKrupp Elevator (Canada) Limited, 2019 ONSC 7460 as support for the proposition that a single act of disobedience can justify dismissal. Render is a decision involving sexual harassment in the workplace and does not assist on the facts of this case.

[42] In accordance with the principle set out in McKinley, supra, the plaintiff’s misconduct was not so egregious that it can be said that he abandoned the intention to remain part of the employment relationship. The plaintiff should have been advised that his misconduct was serious and that a repetition would result in termination of this employment.

[43] Considering all the circumstances including the lack of an apology, the misconduct in this case does not justify dismissal without notice.

The Plaintiff was awarded 19 months notice.

My Comments :

In my opinion it is crucial and smart to interview any employee before discipling or discharging then for cause for the following reasons:

You might actually learn something that will change your mind.
Even if you have already made up your mind , you can tell the Court or the arbitrator that you considered the employee’s evidence and then arrived at your own carefully considered decision.
The employee in question may admit to the conduct in the interview.
The employee may commit him or herself to a certain story which later on he or she will not be able to change after getting legal or a friends’ advice.
If you openly record the interview, there can be little dispute later on about who said what .
Interviewing is a skill that not everyone has. These interviews should be conducted by someone who knows how to do it, which is probably not the local supervisor.

If you have trouble locating this case, just send me a email at barryfisher@rogers.com and I will send you a copy.

For my date availability go to https://ontariomediators.org/barry-fisher

Pregnancy a Factor in Extending Notice Period : 1)

In Nahum v Honeycomb Hospitality, Akbarali J. ( 2021 ONSC 1455) had to determine the notice period for a 28 year old middle manager ( HR) with 4.5 months employment who at the time of termination was 5 months pregnant.

In a extensive 20 paragraph analysis , the Judge determined that the fact that she was 4 months away from giving birth would likely have negative impact on her job prospects and because of this the notice period should be extended.

Here is the entire section on the issue from the judgement:

Pregnancy

[34] To the knowledge of Honeycomb, Ms. Nahum was about five months pregnant when she was terminated. The most contentious issue between the parties is whether Ms. Nahum’s pregnancy ought to be considered in determining the reasonable notice period.

[35] In Harris v. Yorkville Sound Ltd., 2005 CanLII 46394 (Ont. S.C.), Dambrot J. considered the reasonable notice period where a woman was terminated very early in her pregnancy. The parties in that case differed on whether the plaintiff’s pregnancy should be a factor in determining reasonable notice. In concluding it should be, Dambrot J. held:

It seems to me that if part of the concern in the exercise of setting reasonable notice is the availability of other work, and the possibility of the dismissed employee being hired for it, then pregnancy has to be a consideration.

[36] Dambrot J. found that he did not require evidence to find that the plaintiff’s pregnancy did not enhance her immediate employability. Without the pregnancy, he would have found that ten months’ notice was appropriate. In view of the pregnancy, he added two months’ notice, for a total of a twelve-month reasonable notice period.

[37] In reaching his conclusions, Dambrot J. relied on the decision of Hoilett J. in Tremblette v. Aardvark Pest Control Limited, [1987] O.J. No. 2380, 16 C.C.E.L. 306 (Ont. Dist. Ct.). In that case, in determining the period of reasonable notice, Hoilett J. considered a number of factors, including that the plaintiff was pregnant at the time of her dismissal, “a fact which, fairly or not, did not enhance her immediate employability.”

[38] Dambrot J. also relied on a 2002 decision of the Divisional Court, Ivens v. Automodular Assemblies Inc., [2002] O.J. No. 3129, 162 O.A.C. 124 (Div. Ct.). There, the Divisional Court was asked to consider whether the trial judge erred in law when she concluded that she was “not satisfied that [the appellant’s pregnancy] [was] a factor which the law should recognize in circumstances like those in this case.” The trial judge noted the plaintiff’s argument that her pregnancy and the complications she was experiencing would make it more difficult for her to find employment.

[39] The Divisional Court noted that the trial judge found as a fact that the pregnancy would impact on the appellant’s employability. However, the trial judge concluded that it did not seem to be sound policy to distinguish the notice that employees of otherwise identical backgrounds would receive, “solely on the ground that one had a disability that would affect employment opportunities,” finding that to do so it would be unfair to employers, and speculative.

[40] The Divisional Court noted that the purpose of reasonable notice is to give the employee an opportunity to find other employment. As a result, it found that the appellant’s pregnancy complications were a “Bardal-type factor” that should have been considered in determining what constituted reasonable notice to the plaintiff, along with the other relevant factors.

[41] In contrast, a 2001 decision of the Ontario Superior Court of Justice, Colburn v. Unity Savings and Credit Union Limited, [2001] O.J. No. 2920, 106 A.C.W.S. (3d) 856, found that the plaintiff’s pregnancy was not a factor in her termination, and on the facts of that case, should not be a factor in determining the amount of notice, or pay in lieu of notice. In Colburn, the court noted the trial decision in Ivens, which was overturned after Colburn was released. The court also noted the decision in Tremblette, but it did not explain why it did not accept the reasoning set out by Hoilett J. in that case.

[42] Honeycomb argues that it is problematic to find that pregnant people are less likely to find employment, for several reasons. First, it argues that concluding that pregnant people are less likely to become employed implies that prospective employers will violate human rights legislation in their hiring decisions, and the dismissing employer will be held responsible for the wrongs of others.

[43] I do not accept this submission. There is no certainty that an employer who prefers a candidate who is not pregnant is violating human rights legislation. An employer seeking to fill a position is likely to have an immediate need for someone in the role. The prospect of a new employee who will shortly require a lengthy leave will be unappealing to many employers and may not meet bona fide needs of their organization. It is not possible to conclude that the disadvantage to pregnant person in the hiring process will necessarily be a human rights violation.

[44] Second, Honeycomb argues that in order to reach the conclusion that pregnancy is often a disadvantage in a job search, I require evidence, because I am not able to take judicial notice of that fact. In support of its argument, it states (without evidence) that there are websites dedicated to assisting pregnant people in undertaking a job search, indicating that pregnant people look for work all the time.

[45] I have difficulty with this argument as well. The jurisprudence I have referred to makes clear that the purpose of reasonable notice is to provide a reasonable period of time for a person dismissed from their employment to obtain a new position. Objectively, a person’s pregnancy is likely to increase the amount of time it will take them to find new employment in most cases, because most employers want to fill a need in their organization with someone who will be present to fill that need.

[46] As I have noted, other courts have concluded, without evidence, that pregnancy creates difficulties for a person searching for employment. Justice Dambrot specifically found that he did not need evidence to reach that conclusion. This past judicial consideration supports the conclusion that it is open to me to take judicial notice that pregnant people face additional challenges when looking for work. Judicial notice may be taken of this conclusion because it is a fact so notorious or generally accepted as not to be the subject of debate among reasonable persons.

[47] I also note that there would be no reason for websites advising pregnant people on how to conduct a job search if pregnancy were not a disadvantage in the job search process.

[48] Third, Honeycomb argues that considering pregnancy when determining the reasonable notice period is problematic because it opens the door to the inclusion of other factors that may impact an individual’s professional success. By way of example, it argues (without evidence) that “tall people are generally more successful according to several studies than others.” It suggests that if pregnancy is relevant to the notice period, shorter people could also make an argument in support of a longer notice period.

[49] Nothing in this argument recognizes the inherent barrier that pregnancy poses to most job searches – the impending absence of the prospective employee from a position for which they are not yet trained, in which they have not yet proven themselves, and in respect of which the employer is most likely seeking to fill an existing need. There is no reason to suppose short people are going to need to take an imminent and possibly lengthy leave of absence shortly after being hired.

[50] However, I do agree with Honeycomb that pregnancy should not function to automatically lengthen the notice period in every case. Like all factors relevant to the notice period, pregnancy is one of the factors to be considered in the circumstances of the case.

[51] Much like a person’s advanced age will often be a factor tending to increase the notice period, it will not always be; a 28-year-old can hardly expect to be hired for a job that demands 30 years of experience, for example.

[52] Similarly, a pregnant person may not always be impeded in their job search due to pregnancy, where, for example, they are searching for a job to commence in the future (for instance, a second-year law student looking for an articling position). A pregnant person with very specific skills that are in demand may reasonably expect to find an employer willing to accommodate their upcoming need for a maternity leave. However, there is no principled reason why, when determining the damages of a wrongfully dismissed employee, their pregnancy at the date of dismissal should not factor into the reasonable notice period when their pregnancy is reasonably likely to negatively impact their ability to find alternative employment.

[53] In this case, as I have noted, Ms. Nahum applied to at least 36 positions after her dismissal and before her baby was born. Only one resulted in an interview. Ms. Nahum agreed on cross-examination that, apart from the prospective employer who interviewed her, Ms. Nahum did not disclose her pregnancy to other employers. She indicated that prospective employers could have learned of her pregnancy if they had looked her up on Instagram, but there is no evidence to suggest that any did, or that they did not.

[54] In any event, the question of the reasonable notice period must be answered at the time of Ms. Nahum’s dismissal: Holland v. Hostopia.com Inc., 2015 ONCA 762, at para. 61. To the extent hindsight clarifies the impact her pregnancy had on her job search, it is as irrelevant as the COVID-19 pandemic.

[55] At the time of her dismissal, Ms. Nahum was five months pregnant. In my view, it is unreasonable to expect she would be able to obtain new employment in the two month period proposed by Honeycomb given the point in her pregnancy at which she was terminated, and the competitive job market in which she was seeking work.

Without saying what the notice period would have been but for the pregnancy, the Judge awarded the Plaintiff 5 months notice, which was 2 weeks longer than her actual period of employment.

It would have been more useful if the Judge had said how much of that notice period extension was related to the pregnancy.