Wednesday, 27 March 2013

Application Seeking Declaration of No Improper Doing in Firing of Employee on Maternity Leave Declared Abuse of Process

Is the Human Rights Tribunal of Ontario (“HRTO”) an appropriate body to decide whether a woman was fired for “legitimate business reasons”? According to a decision from the Ontario Superior Court of Justice, Power Tax v. Millar, DioGuardi, 2013 ONSC 135 (CanLII) the answer is, “of course.”

Summary of Decision

The case concerned an Application, commenced by the defendant employer, seeking the court’s declaration that it had terminated one of its employee’s employment for “legitimate business reasons.” The employer had commenced the Application only after the dismissed employee had brought an application to the Human Rights Tribunal of Ontario (“HRTO”), in which she alleged that her employment had been terminated for discriminatory reasons; namely, that she had taken maternity leave.

The judge hearing the case, the Honourable Justice Goldstein, held that the employer’s Application was clearly an abuse of the court’s process.


As is set out in Justice Goldstein’s reasons for decision:

Dawn Millar was employed as a Manager, Tax Resolutions for Power Tax Corporation. In January 2011 she went on maternity leave. She had her baby in February 2011. Power Tax asked her to come back early from maternity leave. She was unable to do so. Power Tax informed Ms. Millar in January 2012, a few days before she was scheduled to return to work, that her employment was terminated. She was told that there was a restructuring. She was paid severance in accordance with her employment agreement.
Ms. Millar was certain that she had not been let go not for business reasons. She believed it was an excuse to get rid of her because she took her full entitlement of maternity leave. Ms. Millar filed a complaint with the Human Rights Tribunal of Ontario (“HRTO”). She alleged discrimination on the basis of sex, including sexual harassment, pregnancy, and gender identity, contrary to the provisions of Part I of the Human Rights Code, R.S.O. 1990, c. H.19 (“the Code”).

Power Tax subsequently brought an application to the Superior Court seeking a declaration that Ms. Millar had been let go for valid business reasons. Ms. Millar brought a motion to dismiss or permanently stay the Application, arguing that the employer’s Application to the Superior Court was an abuse of process and that, even if it was not an abuse of process, the court should, in the alternative, exercise its discretion and stay it anyway in order to avoid a multiplicity of proceedings and the possibility of inconsistent results.


Ms. Millar’s lawyers had argued that the employer’s Application was a “pre-emptive collateral attack.” Her lawyers submitted that the Application had no purpose other than to harass and intimidate Ms. Millar and prevent her from pursuing her HRTO complaint.

According to Justice Goldstein’s decision, counsel for the employer admitted that but for the Human Rights complaint, it would not have commenced the Application. However, the employer argued that only the court could make a determination as to whether Ms. Millar was fired for legitimate business reasons.


In rejecting the employer’s argument that only the court could determine whether Ms. Millar had been let go for “legitimate business purposes”, Justice Goldstein wrote the following:

Termination of employment in violation of the [Ontario Human Rights] Code is not a valid business reason. The HRTO is equipped to deal with that question.

Accordingly, in the result Justice Goldstein wrote:

I find that the Application is an abuse of this court’s process for the following reasons:
  • There was no reason for Power Tax to bring the Application other than as a response to the HRTO complaint. Power Tax simply disagrees that the HRTO should hear the complaint. The Application is vexatious.
  • Bringing the Application forces Ms. Millar to fight a two-front war. It is unfair to force her to respond in a separate forum simply because Power Tax doesn’t appear to like its chances of success at the HRTO.
  • Permitting a Rule 14 Application to go forward where Power Tax has alleged no wrongdoing by Ms. Millar, or even alleged that the HRTO complaint is frivolous, would be tantamount to approving attempts by employers to do an end-run around the HRTO process.
  • If the HRTO were to find in Ms. Millar’s favour, Power Tax would likely be estopped from bringing the Application, either on the basis of issue estoppel or on the grounds that it was a collateral attack on the HRTO’s findings; likewise, if the HRTO were to dismiss Ms. Millar’s complaint, Power Tax would undoubtedly resist any attempt by Ms. Millar to re-litigate the claim in this Court.
  • I share [HRTO] Associate Chair Wright’s concern that permitting the Application to go forward would encourage forum shopping, multiple proceedings, and delay.


Cases of dismissal following a return from maternity leave are a hot topic. Both employers and employees are interested in the issue.

The case demonstrates the point that the rights afforded to employees taking maternity leave pursuant to section 53 of the Ontario Employment Standards Act, 2000 and Division VII of the Canada Labour Code will be taken very seriously. (For more on this subject, have a look at the posts Fired After Maternity Leave and Can I be Fired for Being Pregnant)

With no disrespect to counsel for the employer, the Application was misguided. If the issue is whether Ms. Millar was terminated for reasons that are contrary to the protections afforded under the Human Right Code, then the issue should have been litigated in the Human Rights Tribunal, where Ms. Millar elected to start her case.

Takeaways for those with Labour Pains

If you are an employee that has been recently dismissed by your employer while on or after returning from maternity/pregnancy/parental leave, the first thing to do is to seek legal advice. For those in Eastern Ontario and the Greater Toronto Area who need assistance, the professional, experienced and cost-effective employment lawyers for employees at Ottawa's Kelly Santini LLP would be happy to be of service to you.

To reach the author of this blog, Sean Bawden, email or call 613.238.6321 x260.

If you are an employer, and are considering terminating an employee who is on maternity leave or who has recently returned from maternity leave, or whom you suspect may soon take maternity leave, the prudent thing to do would be to seek professional legal advice before doing anything. The professional, experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP would be happy to be of service to your business or organization.

To reach the author of this blog, Sean Bawden, email or call 613.238.6321 x260.


As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

Sean Bawden, publisher of Labour Pains, can be reached by email at or by phone at 613.238.6321.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He is also a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.

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