Law Times

Law Times • aPril 13, 2015 Page 9 www.lawtimesnews.com COMMENT Human rights changes offer new forum for access to justice By miChaeL sTiTZ For Law Times he Ontario Superior Court of Justice re- cently released two judgments award- ing damages pursuant to the Human Rights Code in the civil wrongful dismissal context. This is significant as the decisions represent two of a mere handful of judgments of this nature in Ontario. In 2008, the government amended the code to per- mit provincially regulated employees to pursue hu- man rights redress outside of the Human Rights Tri- bunal. Based on s. 46.1(1) of the code, if claimants have a primary cause of action such as breach of contract (for wrongful dismissal, for example) and an ancillary claim such as discrimination within the context of that dismissal, they can rely on the code in the context of a civil action before the Superior Court of Justice. Among its powers, the court can make an order di- recting the party who infringed the right to pay monetary compensation for loss arising out of the infringement, in- cluding for injury to dignity, feelings, and self-respect. In theory, this represents a significantly broader power as it relates to awarding damages in comparison to the tradi- tional wrongful dismissal analysis. In Bray v. Canadian College of Massage and Hydro- therapy, the Small Claims Court awarded Kelly Bray $25,000 plus interest as a result of a successful con- structive dismissal claim. Bray's case involved a failure by her employer to return her to the exact position she held prior to taking maternity leave. Bray's award was subject to the $25,000 monetary jurisdiction of the court. The actual damage award consisted of eight months of compensation in lieu of notice ($17,700), $20,000 on account of the defendant's breach of the code, and punitive damages of $5,000. In Partridge v. Botony Dental Corp., the court awarded Lee Pa rtridge $62,517 as damages for wrong- ful dismissal and breach of the code. It comprised of $42,517 (12 months of reasonable notice less mitiga- tion) and $20,000 respectively. Notably, Partridge was a 36-year-old office manager and a seven-year employ- ee. This case, much like Bray, involved an employee experiencing a fundamental change to her employ- ment upon return from maternity leave and the court finding a breach of the code on the basis of family status. This is one of the first decisions in Ontario to consider and apply the Federal Court of Appeal's deci- sion in Canada (Attorney General) v. Johnstone regard- ing family status discrimination. Unlike in Bray, the employer in this case formally dismissed the employee for cause as a result of a refusal to accept the changes. While both cases are equally significant, Bray is interesting not only because of the gravity of the deci- sion and the fact it came out of the Small Claims Court but because also it included an award of punitive dam- ages for, among other things, the employer having breached its duty of good faith. Bray was 34 years old at the time of dismissal and a nine-year employee. Her annual income was approxi- mately $39,000. Upon her attempted return from mater- nity leave, her superior said she would be assuming a low- er position. When Bray reminded her the law required her to return her to the same or a similar role, her superior responded: "Let's see how this term goes and see if you find it OK with even being in four classes and having to be a mother at the same time. It will be a big adjustment." This discriminatory conduct resulted in Bray making a complaint to the Ministry of Labour. That complaint was also a factor in the adverse treatment that included informing Bray there were no dates the employer would require her to work for the foreseeable future. Therefore, Bray's sex and family status were directly and indirectly a factor in the adverse treatment she endured. The recent inf lux of these types of wrongful dis- missal actions, including those before the Small Claims Court, now firmly establishes another forum for access to justice where employees can bring all of their claims under one roof and also obtain costs from a defendant if successful. Significantly, the Human Rights Tribunal still cannot award costs. These types of wrongful dismissal cases should, by their very nature, encourage more efficient litigation from the standpoint of both plaintiff and defence coun- sel. Conversely, in the federal context, employees may have to bifurcate their human rights and wrongful dis- missal actions and proceed through two avenues or the court may stay one action while it hears the other. Equally, some may argue the judiciary is not as equipped as a specialized tribunal in f leshing out the evidence and determining appropriate damage awards. Thus far, the awards of the court have been modest at roughly $20,000 in general damages per case. This sum is not dissimilar from the awards made by the tribunal and the courts are cognizant of its past decisions. The concern some might have with the analysis and cases put forward thus far by counsel is that the courts ap- pear to be dealing with the human rights damage awards separately and apart from the wrongful dismissal analy- sis and not in a unique or significant enough manner as some may have envisioned as a result of s. 46.1(1). In litigating cases of this nature, we should remem- ber the words of former Ontario Court of Appeal justice Thomas Zuber in Piazza v. Airport Taxicab (Malton) Association: "The purpose of compensation is to restore a complainant as far as is reasonably pos- sible to the position that the complainant would have been in had the discriminatory act not occurred. I find nothing in the language of the foregoing section which would import into it the limit on compensation which is imposed by the common law with respect to claims for wrongful dismissal." LT Michael Stitz is a labour and employment lawyer at Grosman Grosman & Gale LLP in Toronto. He assists both employers and employees in all aspects of employ- ment law including disability management and human rights litigation. He's available at grosman.com. u SPEAKER'S CORNER time to reform rules for reviewing parenting regimes ustody and access cases are some of the most trying in family law both for parents and lawyers. That's even more so when the chil- dren are very young. The courts most often place young chil- dren in primary residence regimes because of attachment theories and the preponder- ance of psychological evidence and litera- ture on the subject that suggests that's the best arrangement for young children. In many cases, that may be quite appropriate, but our existing legal framework is, in my view, ill-equipped to deal with the changing needs of young children as they get older. Effectively, there's no real room in our exist- ing system for incremental increases in par- enting time as children get older as courts at the initial stage are loathe to order them and the material change in circumstances test on subsequent reviews is quite cumber- some. The recent Ontario Court of Appeal decision in Brown v. Lloyd is one example. In this case, the parties had cohabited from 2004-07 and had one child together. At the time of separation, the child was 2-1/2 years old. In 2010, when the child was more than five years old and after several years of litigation, the parties consented to a final order pursuant to which the child would live primarily with his mother and have al- ternate weekend and mid-week access with his father. The consent order indicated there would be no review of the parenting sched- ule prior to June 2012 unless there was a ma- terial change in circumstances. At the hear- ing, the father testified he had consented to the order because he thought it was the best he could get at the time. The child was identified with a learning dis- ability at the age of seven and required specialized tutoring. In the interim, the mother, Moya Brown, had remarried and had two more children with her new partner. In November 2012, the father, David Lloyd, commenced a mo- tion to change seeking to increase his access to an equal parenting regime. Superior Court Justice Suzanne Stevenson, who pre- sided over the motion to change, provided very detailed reasons for judgment and went through the law on variation of parenting orders. In this regard, the Children's Law Reform Act provides that the court shall not vary a final unless there has been a material change in circum- stances. Stevenson also referred to the Supreme Court's decision in Gordon v. Goertz in which it made it clear that only once a party has established a "material change in cir- cumstances" can a judge consider how a variation order would serve the child's best interests. To that end, the change must have altered the child's needs or the parents' abil- ity to meet them in a fundamental way. Lloyd argued the child's increased age and medical diagnosis as well as Brown's re- marriage all constituted sufficient changes to warrant a review of the parenting sched- ule. Stevenson, however, held that those facts didn't amount to a substantial enough change warranting a review of the schedule. She held that the child was doing well and the parents were parenting him effectively. The judge also emphasized that a child's increased age doesn't, under our existing legal framework, automatically con- stitute a material change in cir- cumstances warranting a review. The biggest evidentiary fail- ure in this case was a lack of social work or psychological evidence on whether one of the child's needs was to spend more time with his father. That's not easy evidence to get. For strategic reasons, parties typically don't achieve consensus on privately retaining a joint expert. Unless there are very significant problems with the child, the office of the children's lawyer is unlikely to take on the matter due to financial con- straints and it's highly unlikely that a court will order a full-blown assessment pursuant to the provisions of the Children's Law Re- form Act. So how are parents supposed to show whether a child will benefit from in- creased time with the access parent? There's something very disjointed sur- rounding the law on this issue. On the one hand, as Stevenson noted, children benefit from minimizing custody and access liti- gation. On the other hand, our courts are rarely, if ever, willing to order incremental increases in parenting schedules of young children even in the face of full-blown as- sessments recommending them. Instead, access parents often have to accept a regime that may be in the best interests of a very young child but may be entirely unneces- sary for an older child who may well ben- efit from some more time with them. These parents then face extremely cumbersome and sometimes-insurmountable evidentia- ry burdens that lead to conf lict in the family. Obviously, Lloyd appealed the trial de- cision, but in a unanimous ruling, the On- tario Court of Appeal dismissed his appeal and confirmed Stevenson's reasoning. Ef- fectively, unless the children do poorly in a primary parenting regime, based on the reasoning in this case they'll be unlikely to receive the benefit of increased time with the access parent as they grow up. The case isn't ground breaking as it fol- lows the current state of the law. I'm writing about it because it's a very good reminder about how carefully we must approach what we seek in initial access cases and how we draft our orders if a matter settles. How the law approaches custody and access has been the subject of a great deal of debate over the last few years, including consideration of a private member's bill that sought to amend the Divorce Act to include a rebuttable presumption of joint custody and equal parenting. While Parliament defeated that bill, the debate on how to bal- ance the best-interests test with the realities of an adversarial system and minimize the impact on families in general continues. I continue to be hopeful that we can achieve a balance with legislative or judicial reform that will reduce how cumbersome it is to re- view parenting regimes. LT Marta Siemiarczuk is a lawyer practis- ing family law litigation and collaborative family law at Nelligan O'Brien Payne LLP in Ottawa. She can be reached at marta. siemiarczuk@nelligan.ca. C Family Law Marta Siemiarczuk T

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