Decision to Breastfeed a “Personal Choice”, which Need Not be Accommodated: Federal Court of Appeal

Earlier this year I wrote about a decision of the Public Service Labour Relations and Employment Board (“PSLREB”), in which Member Augustus Richardson held that an employee’s work requirements that impacted on that employee’s breastfeeding schedule did not constitute discrimination on the basis of either sex or family status. See: Employers Need Not Accommodate Employees “Choice” to Breastfeed - PSLREB.

Now the Federal Court of Appeal has judicially reviewed that decision and a panel of three judges (two women and one man) upheld it.

In its decision rendered November 10, 2015, (Flatt v. Canada (Attorney General), 2015 FCA 250 (CanLII)), the Federal Court of Appeal upheld the decision that the employee’s decision to breastfeed her child was a “personal choice”, holding specifically at paragraph 35 of its reasons for decision that, “Breastfeeding during working hours is not a legal obligation towards the child under her care. It is a personal choice.”

Some people are going to disagree.

Top Five Cases of Importance to Ontario Employment Law - 2015

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I have listed my “Top Five Cases of Importance to Ontario Employment Law” every year since 2012 (see: 2012, 2013, 2014.) So, with another year coming to a close it is once again time for this Ontario employment lawyer to provide his picks for the Top Five Cases of Importance to Ontario Employment Law.

“Benefits”: The Most Important Word in Ontario Employment Law

What is the most important and expensive word in Ontario employment law? “Benefits.” That one single word has cost more employers more money, and created more headaches and confusion for Ontario employment lawyers over the past four-to-five years, than any other.

Why is the word “benefits” so important, expensive, and frustrating? Because there is a debate in Ontario jurisprudence as to whether the failure to specifically say “benefits” in a contractual termination provision renders the contract “void ab initio”, that is void from the start.

A decision of the Ontario Superior Court of Justice, released October 29, 2015, Oudin v Le Centre Francophone de Toronto, 2015 ONSC 6494 (CanLII), only serves to add to the confusion.

Employer’s Financial Circumstances Not a Relevant Consideration in Determining Reasonable Notice: ONCA

Are an employer’s financial circumstances a relevant consideration in determining the period of reasonable notice to which a wrongfully dismissed employee is entitled?

That was the issue that the Court of Appeal for Ontario had to answer in the case of Michela v. St. Thomas of Villanova Catholic School, 2015 ONCA 801.

In answering the question “no”, the court could not have been any more succinct or clear: “An employer’s financial circumstances may well be the reason for terminating a contract of employment – the event that gives rise to the employee’s right to reasonable notice. But an employer’s financial circumstances are not relevant to the determination of reasonable notice in a particular case: they justify neither a reduction in the notice period in bad times nor an increase when times are good.”

Too Little, Too Late. Employer Could Not Impose New Terms via Contract after Employee Accepted Letter of Offer

What happens when a potential employee signs a letter of offer, which letter makes reference to an employment agreement “to follow”, the terms of which agreement differ substantially from what is contained in the offer letter? Will the court uphold the terms of the full contract?

Put another way, can an employer make a basic offer of employment to a candidate, advise the candidate that he will be required to sign a full employment agreement at some later time, and then impose new terms via that full contract?

I have repeatedly answered that question in the negative, see e.g. No Changes Without Consideration, published June 2, 2012. More recently, on November 10, 2015, (and with much more authority) the Court of Appeal for Ontario, in its reasons for decision in Holland v. Hostopia.com Inc., 2015 ONCA 762 (CanLII) said exactly the same thing and for essentially the same reason.