Ontario Small Claims Court Awards $25,000 for Constructive Dismissal Following Maternity Leave

Written on behalf of Peter McSherry

In Bray v Canadian College of Massage and Hydrotherapy, 2015 CanLII 3452 (ON SCSM), the Ontario Small Claims Court awarded the maximum damage award of $25,000 to an employee whose hours and wages were significantly reduced following her return from maternity leave.

In 2004, Kelly Bray, a Registered Massage Therapist, was hired by the Canadian College of Massage and Hydrotherapy as a massage therapy instructor. Although her schedule varied in each of the College’s three teaching terms, Bray worked an average of 25 hours per week.

Bray commenced maternity leave in October 2012, planning to return to work October 2013. In advance of her return to work, Bray was informed by the College’s management that she would not be leading treatment classes as she had done prior to her leave. When Bray objected to the reduction in her hours and wages, the College’s Director of Education wrote back in response, “Let’s see how this term goes and see if you find it ok with even being in 4 classes and having to be a mother at the same time. It will be a big adjustment.” Following this email exchange, Bray filed a  complaint with the Ministry of Labour. In November 2013, the College informed Bray it would not be able to schedule her for any classes, clinic or outreach work for the upcoming term. In response, Bray brought an action for wrongful dismissal in Small Claims Court.

Section 53(1) of the Employment Standards Act, 2000 states, “Upon the conclusion of an employee’s leave under this Part, the employer shall reinstate the employee to the position the employee most recently held with the employer, if it still exists, or a comparable position, if it does not.”

Ontario Small Claims Court deputy judge Sebastien Winny allowed Bray’s claim. Finding that the unilateral change to Bray’s hours and wages constituted constructive dismissal, that the employee’s sex and family status were factors in her discriminatory treatment, and that the employer’s actions amounted to bad faith conduct, the judge assessed damages in the amount of $17,700 in lieu of reasonable notice; $20,000 for injury to dignity, feelings and self-respect; and $5,000 in punitive damages, for a total of $42,700. As the maximum claim allowed in the Small Claims Court was $25,000, Winny granted judgment in that amount.

To find out more about constructive dismissal or human rights in the workplace, contact Peter McSherry online or at 519-821-5465.

To read the full decision, click here