The plaintiff was employed by the defendant for nine years as a massage therapy instructor. Following the plaintiff’s return from maternity leave, her hours were unilaterally reduced and her responsibilities and income diminished. In four months, her hours were reduced to zero. The plaintiff successfully brought an action against the defendant for wrongful dismissal. The court also found that the defendant employer had discriminated against the plaintiff on the basis of sex and family status, justifying a $20,000 award for injuries to feelings, dignity and self-respect. In addition, punitive damages of $5,000 was awarded based on lack of forthrightness and bad-faith conduct on the part of the defendant. The total award of $42,700 was reduced to $25,000 to reflect the court’s monetary jurisdiction.

24. March 2015 0

Administrative law – Employment law – Termination of employment – Wrongful dismissal – Human rights complaints – Discrimination – Marital status – Gender – Remedies – Damages

Bray v. Canadian College of Massage and Hydrotherapy, [2015] O.J. No. 465, Ontario Superior Court of Justice, January 31, 2015, J.S. Winny Deputy J.

The plaintiff was employed with the defendant starting in December 2004. She worked as a massage therapy instructor, working an average of 25 hours per week over nine years of employment. In October 2012, the plaintiff went on maternity leave and returned on October 2013. Prior to her start, she had email communications with the defendant employer where she was advised she would not be teaching classes as before and in the defendant’s words, “let’s see how this term goes and see if you find it okay with even being in for classes and having to be a mother at the same time. It will be a big adjustment.” The plaintiff reacted by filing a complaint with the Ministry of Labour. When she returned, her hours and gross weekly pay were reduced by one third. On December 16, 2013, the defendant wrote to the plaintiff saying that she would not be scheduled for classes for the upcoming term. The plaintiff subsequently commenced an action for wrongful dismissal.

The court found that the plaintiff was constructively dismissed by virtue of the defendant’s December 16, 2013 letter. The plaintiff was effectively laid off indefinitely. The court rejected the defendant’s contention that the plaintiff was scheduled for zero hours as a form of progressive discipline and found it difficult to accept the sincerity of the defendant’s position given that no such suggestion was given to the plaintiff at the time. In any event, even if the substance of the alleged misconduct was true, the indefinite layoff or suspension was not a proportionate response. The defendant had supposedly received a complaint about the plaintiff in September 2003 which it never disclosed to her or provided her with opportunity to respond. The complaint itself was a double hearsay from a former student whose name was redacted at trial – which the court found consistent with the defendant’s desire to prevent the plaintiff from looking into the matter.

With respect to damages, the common law requirements for reasonable notice applied and the termination provisions in the defendant’s “Employee Policy Handbook” did not exclude the common-law. At best the terms were ambiguous and should be interpreted contra proferentem. The plaintiff was entitled to eight months’ notice or equivalent damages calculated at $17,700.

The court also found that the plaintiff was discriminated against on the grounds of sex and family status. The plaintiff was subject to adverse treatment upon her return from maternity leave, her responsibilities were decreased, and her hours and income were reduced. Three months later she was out of work. On the balance of probabilities, the plaintiff’s sex and family status were factors in the adverse treatment and the defendant was liable for discrimination contrary to the Human Rights Code. Compensatory damages were fixed at $20,000. No award was made for aggravated damages. The court however awarded $5,000 for punitive damages, finding that exceptional circumstances warranted such an award. The defendant admitted in cross-examination that she was not forthright with the plaintiff. The September 2013 complaint was never disclosed to the plaintiff and the plaintiff was never provided with an opportunity to respond. The complaint itself was not satisfactorily investigated and the plaintiff was not aware of the issue until shortly before the settlement conference. Failure to disclose, as it involved a question of her honesty, and failing to provide her with an opportunity to respond violated the defendants duty of good faith and performance of the employment contract. The defendant employee’s conduct in the matter was bad faith conduct sufficient to warrant an award of punitive damages. The total award of $42,700 was reduced to $25,000, reflecting the court’s monetary jurisdiction.

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