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.