Peternel v. Custom Granite & Marble Ltd., 2018 ONSC 3508 (CanLII)

This is a trial decision dealing with maternity, return to work, accommodation and constructive dismissal issues in the realm of the ESA and OHRC .  

Date Heard: May 14-25, 2018 | Full Decision [PDF]

The Plaintiff worked for the Defendant from May 2010 until December 2013 when she took maternity leave. Her expected return to work date was December of 2014 and modified to January of 2015 on consent. The Defendant made a formal offer of employment commencing her work days at 8:30 am. The Plaintiff’s arrival time is the issue in contention.

The Plaintiff argued that she worked from 10:00 am -5:00 pm prior to her maternity leave and was expecting the same schedule upon her return. The Defendant argued that her arrival time was 7:30 am, but latitude was shown for child care needs and 8:30 was permissible. As a result of this dispute, the plaintiff did not return to work as scheduled as child care was unavailable.

Sheard J., at [36] first cited the Employment Standards Act s. 53(1) which 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 to a comparable position, if it does not.

Sheard J., then considered the lead caselaw on constructive dismissal in Potter v. New Brunswick (Legal Aid Services Commission), 2015 SCC 10 (S.C.C.) affirmed in Brake v. PJ-M2R Restaurant Inc., 2017 ONCA 402 (Ont. C.A.) at paras. 64 to 66:

[64] The test that Potter establishes for constructive dismissal consists of two branches. Satisfaction of either branch is sufficient for a finding of constructive dismissal.

[65] The first branch of the Potter test has two steps. First, the Court must determine objectively whether a breach has occurred. To do so, the Court must ascertain whether the employer has unilaterally changed the contract. If an express or an implied term gives the employer the authority to make the change or if the employee consents or acquiesces in it, the change is not a unilateral act and will not constitute a breach. To qualify as a breach, the change must also be detrimental to the employee. Second, once it has been objectively established that a breach occurred, the Court must ask whether a reasonable person in the same situation as the employee would have felt that the essential terms of the employment contract were being substantially changed (Potter, at paras. 37 — 39) 

[66] The second branch of the Potter test necessarily requires a different approach. On this branch, constructive dismissal consists of conduct that, when viewed in light of all the circumstances, would lead a reasonable person to conclude that the employer no longer intended to be bound by the terms of the contract (Potter, at para. 42)

With respect to the constructive dismissal aspect of this matter, Shear J., concluded at [42] I accept Custom’s evidence that, because of changing business circumstances, Custom could no longer offer the plaintiff the flexibility of arriving at work much later than 8:30 a.m. I conclude that when it insisted that the plaintiff maintain the original work hours of 8:30 a.m. to 4:30 p.m., Custom was not unilaterally imposing a change that substantially altered the essential terms of the plaintiff’s contract of employment; rather Custom was asking the plaintiff to do what she had done throughout her employment as Scheduler: to be at work when Custom needed her to be there.

Moving forward onto the human rights component, Shear J., considered Johnstone v. Canada (Border Services Agency), 2014 FCA 110 (F.C.A.) and Misetich v. Value Village Stores Inc. (2016), 2016 HRTO 1229 which provide a 4-part test for establishing family/childcare based discrimination as follows:

(i) the child is under her care and supervision;

(ii) that the childcare obligation at issue engages her legal responsibility for that child, as opposed to a personal choice;

(iii) that she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and

(iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfilment of the childcare obligation.

However, the Tribunal in Misetich rejected that approach favouring:

that to show family status discrimination in the context of employment, an employee would have to show not only a negative impact on a family need but also that the negative impact “must result in real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship, and/ or to the employee’s work. For example, a workplace rule may be discriminatory if it puts the employee in the position of having to choose between working and caregiving, or if it negatively impacts the parent/child relationship and the responsibilities that flow from that relationship in a significant way.” The Tribunal further stated that assessing the impact of a workplace rule must be done “contextually and may include consideration of other supports available to the applicant”. 

In determining that no breach occurred, Shear J., noted that duty to accommodate is a ‘joint process’ requiring cooperation between employee and employer. Unfortunately, the plaintiff provided the Defendant with very little information about her childcare arrangements. This failure to inform robbed the Defendant of their ability to accommodate her needs. The difficulties finding daycare for a 13 month old child, the requirement for a concrete start date, the loss of her mother as a source of childcare and the daycare wait list times were essential to the Defendant’s ability to accommodate her needs.

Shear J., concluded that the plaintiff was not truthful at trial and had failed to provide her employer with her daycare issues and up-dated childcare needs. If she had done so, and her employer refused the result may have been different. By failing to disclose her true needs, the plaintiff frustrated any efforts that might have been made by her employer to accommodate those needs. Therefore, the plaintiff has failed to show that her employer’s request that she start her work day at 8:30 am is discriminatory.

At the time of writing this article, no notice of appeal was filed.


Read the full decision [PDF]
Written by

Antonio is a litigator with Lemieux Law. His practice focuses on motor vehicle accidents, accident benefits, occupiers’ liability, personal injury, long-term disability, wrongful & constructive dismissal, CPP disability, human rights, general litigation and WSIA Appeals. When Antonio is not practicing law, he enjoys playing hockey, working on cars, and visiting family in southern Italy.