Law Times

Page 6 January 26, 2015 • Law Times www.lawtimesnews.com COMMENT An apt judicial censure t's hard enough finding and affording childcare in this country, let alone negotiating schedules around work hours. A new Superior Court ruling demonstrates how tricky the issue can be and the legal consequences for employers who make it particu- larly difficult. Last week, Superior Court Justice Susan Healey ordered Botony Dental Corp. to pay $20,000 in human rights damages for discrimination on the basis of family status as part of a civil action for wrongful dismissal. As part of her decision in Partridge v. Botony Dental Corp., she also awarded more than $42,000 for wrongful dismissal. The case dealt with a dental hygienist turned office manager who returned from maternity leave in 2011. While Lee Partridge, repre- sented in the litigation by Michael Wright and Christopher Perri, had worked from 9 a.m. to 5 p.m. as office manager prior to her leave, the employer decided she'd return to working as a hygienist after coming back. Initially, the employer said she'd be working four days a week from 8 a.m. to 3 p.m. as a hygienist. After Partridge balked, the demand changed to having her work until 6 p.m. several days a week, a situation Healey noted created significant difficulties for her childcare arrangements. While the employer asserted various misdeeds by Partridge it ar- gued amounted to just cause for dismissal, Healey found it was a case of wrongful termination. And noting the significant difficulties Par- tridge faced in being able to work a schedule the judge found wasn't a bona fide occupational requirement, Healey determined it was an appropriate case to award human rights damages. The case, then, is significant as a statement by at least one judge about the reasonableness employers should show in such situ ations. "Particularly where the discrimination has ultimately Time for the province to confront difficult issues ust who's in charge of this prov- ince? Ostensibly, it's the Liberal gov- ernment at Queen's Park, but the narrative suggests otherwise. Take education. It accounts for more than $25 billion in government spending this year. That's second to health at just over $50 billion. So who's in charge of that spending? School boards and teachers are subject to wage restraint, but last year the To- ronto District School Board promoted its assistant director to the director's chair and tacked on $17,000 on top of her predecessor's salary of $272,000. In the face of a directive to comply with the wage restraint, the board simply refused to change it. This month, the province forced it to roll the salary back. We could dive into what else is wrong with the TDSB where meddling school trustees act like ward bosses, but the fact is that on the salary issue, it's not alone. At least 21 of Ontario's 72 local school boards have bumped their own directors' pay, ranging from five per cent to double digits, according to The Globe and Mail. And why shouldn't they ignore the wage freeze? It's a case of do as I say and not as I do because the province itself caved to pressure from the public school teachers' unions when it coughed up $468 million to buy them off prior to the June 2014 elec- tion despite previously pos- turing about a wage freeze. More recently, Ontario doctors learned the province is cutting all fee-for-service physician payments by 2.65 per cent. The province says suggests the biggest loss for doctors is the premium they get for working at walk-in clinics on week- ends and holidays. The root of the issue is the piece- meal approach. It's not the amount of dollars f lowing into the sector but how the province allocates and manages the money. Change, however, is difficult because there are many groups jostling to be the voice in charge. As a result, even good ideas f lounder. About a year ago, the province announced it would create a series of community-based specialty clinics that would take low-risk surgical pro- cedures out of hospitals and improve efficiencies. The clinics would start with cataracts and other eye surgeries such as those offered at the non-profit Kensington Eye Institute. Colonoscopies were also on deck and the hope was other procedures like dialysis and orthopedic surgery would be on tap as well. It's a concept that has worked well in Quebec and is long overdue. Predictably, the Ontario Nurses' As- sociation, Unifor, and other health-care worker unions slammed it as bad policy that would threaten patient health and cost jobs. They also insinuated it would result in a two-tier health system, a common cry any time there's any suggestion of bringing about significant changes to the health-care system. To its credit, the government forged ahead. It has been reviewing applic ations since the deadline last spring. Hopefully, there will be more news in the next couple of months, but it won't be an easy ride because as soon as the plan rolls there will be even louder howls of outrage. We know our health-care system is out of control with too much spent on administration and not enough on di- rect patient care. The Liberals know they have to act but are reluctant to get out in front of the story. We should be talking about more clinics, modest user fees at some levels, restructuring payments for procedures where technology has automated most of the process, and more competitive bidding for health services. If this government is to show the pub- lic it's serious about resolving its spend- ing problem, it has to start by taking charge of the issues that no one seems to want to confront. LT uIan Harvey has been a journalist for more than 35 years writing about a di- verse range of issues including legal and political af fairs. His e-mail address is ianharvey@rogers.com. ©2015 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. 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The Court's censure is warranted by way of an award that will act as a dete rrent to employers who are unwilling to accommodate childcare arrangements, except where legitimate, justifiable grounds exist for be- ing unable to do so." It's helpful to see a judge adding to the case law on discrimination on the basis of family status. With employers sure to have to have their own concerns about this issue, it's an area that's likely to be subject to continued litigation and is ripe for further judicial elaboration. — Glenn Kauth I J Queen's Park Ian Harvey

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