It is well established in Canadian law that terminating an employee because she is pregnant is discriminatory. Since only women can get pregnant, discrimination due to pregnancy is discrimination based on sex.
However, there is always the question about short-termed pregnant employees, who may be on a contractually defined probation period. This can be complicated, as employers have the right to determine whether an employee is the right fit. However, the fact that the employee is pregnant should not play any role in such a decision. Impulsively terminating a pregnant employee ended up costing an employer in Iskander v 2363327 Ontario Incorporated (2024 HRTO 1122).
Iskander v 2363327 Ontario Incorporated (2024 HRTO 1122)
In Iskander v 2363327 Ontario Incorporated, Kristina Iskander worked, for about one week, for 2363327 Ontario Incorporated, which operated as Burgers on Beechwood. The employer was aware that Ms. Iskander was pregnant and that she intended to get enough hours so she could qualify for EI maternity and parental leave benefits upon the birth of her child. The employer agreed to get her sufficient hours on the understanding that the number of hours she works each week would be flexible. However, upon seeing a Facebook post that seemed to suggest that Ms. Iskander would leave the country after her child was born, the employer terminated Ms. Iskander without asking her about her post-birth plans. After being terminated, Ms. Iskander filed a complaint with the Human Rights Tribunal of Ontario for discrimination based on sex.
This case is a default decision because both 2363327 Ontario Incorporated and its owner, Richard Primeau, failed to file a response to the complaint. The tribunal ultimately found that Ms. Iskander was discriminated against based on sex. The tribunal found that it was clear in Mr. Primeau’s messages upon termination that his decision was based on what he assumed was Ms. Iskander’s post-pregnancy plans were, directly linking the termination to the pregnancy. Based on the Tribunal’s analysis of the objective seriousness of the discrimination and previous precedent where employees were terminated because they were pregnant, the Tribunal awarded Ms. Iskander $15,000 as compensation for her injury to dignity, feelings, and self respect. The tribunal also awarded Ms. Iskander $7,499 for lost wages and $15,350 for lost EI maternity and parental leave benefits due to the discriminatory termination. In total, Ms. Iskander was awarded $37,849 in damages.
Takeaways from Iskander v 2363327 Ontario Incorporated (2024 HRTO 1122)
Iskander v 2363327 Ontario Incorporated is a default decision. Therefore, the result may have differed if it was properly defended. Regardless, the case shows that the Ontario Human Rights Tribunal is willing to award significant damages for discrimination caused by terminating an employee in part for her pregnancy. This is a case where the employee received over $37,000 more in damages than she received in wages in her entire time while working at Burgers on Beechwood.
Based on the significant size of the damages, employers should always discuss terminating an employee who is pregnant with an employment lawyer. If the reason for the termination can in any way be connected to pregnancy, the employer could be on the hook for the employee’s potentially lost EI benefits. An employment lawyer can help guide you to avoid the potential liability.
How Suzanne Desrosiers Professional Corporation can help
At Suzanne Desrosiers Professional Corporation we are experienced with addressing termination. If you are an employer and you are considering terminating an employee or an employee who got terminated, we may be able to help you. You can speak to one of our employment lawyers who can advise you on your legal options regarding the termination. To speak to one of our employment lawyers, please call us at 705-268-6492 or email us at info@sdlawtimmins.com.