Court File and Parties

Court File No.: 15-54894 SR Date: 2018-06-05 Ontario Superior Court of Justice

Between: Tina Peternel, Plaintiff – and – Custom Granite & Marble Ltd., Respondent

Counsel: Mark Munro, Counsel for the Plaintiff K.C. Wysynski, Counsel for the Defendant

Heard: May 14, 15, 16, 17, 18, 22, 24 and 25, 2018

Reasons for Judgment

Sheard J.

Overview

[1] The plaintiff worked for the defendant (“Custom”) from May 2010 until December 13, 2013, when she took maternity leave prior to the birth of her third child. Custom operates a small business that fabricates and installs granite for countertops and other uses.

[2] The plaintiff’s statutory maternity leave of one year would have had her returning to work on December 15, 2014. However, in a series of text messages of October 23, 2014 between the plaintiff and Michele Allison, Custom’s controller, it was agreed that the plaintiff would not return to work until the new year, although no date was set for her first day in January 2015.

[3] On January 6, 2015 Allison and Mike Card, Custom’s co-owner, met with the plaintiff to discuss her return to work. Immediately following that meeting, Custom sent the plaintiff a written offer of employment. Custom’s offer required the plaintiff to begin her work day at 8:30 a.m. Except with respect to the morning start time, the plaintiff agrees that the offer of employment was on substantially the same terms as the plaintiff’s pre-maternity-leave job as scheduler (“Scheduler”).

[4] The plaintiff agreed that when she accepted the position of Scheduler in August 2011, she had been told that mornings were important to the role. The previous Scheduler had begun her workday at 7:30 a.m. but the plaintiff told Custom she could not be in the office before 8:30 a.m. because of childcare responsibilities. However, the plaintiff made it known to Custom that she could assume the role of Scheduler as her mother lived with her and provided childcare when needed. Therefore, the plaintiff was available to attend early morning meetings when required and could also handle early morning work-related issues by phone. Custom provided the plaintiff with a cell phone and, after accepting the role of Scheduler, the plaintiff did take work-related phone calls as early as 6:00 a.m.

[5] The plaintiff acknowledged that, from time to time, Card spoke to her about her irregular arrival times. The plaintiff claimed that in December 2011, Card agreed that she would be permitted to arrive at work at any time prior to 10:00 a.m. Throughout her evidence, the plaintiff’s principal explanation for her late arrival at work was that she had to take her two children to the morning school bus and that by allowing her to begin her work day at 10:00 a.m., Custom was accommodating her childcare needs.

[6] This assertion is disputed by Custom and also runs counter to the plaintiff’s evidence that until February 2014, the plaintiff’s mother was available to provide childcare when the plaintiff needed to attend work early. Also, the plaintiff and Card both alluded to conversation in which Card suggested that the plaintiff’s mother could provide additional childcare coverage. The plaintiff’s evidence was that she told Card that she thought her mother was doing enough.

[7] The plaintiff acknowledged that when Card wanted her in early, or she was required to attend early morning meetings, her mother would provide childcare and take the children to the school bus. The plaintiff’s timesheets suggest that that occurred on 143 occasions between August 2011 and November 1, 2013. The plaintiff’s evidence makes it clear that the plaintiff’s arrival time at work was in the discretion of Custom, which expected her to be at work in the early mornings, when Custom required it.

[8] Custom acknowledges that the plaintiff often arrived at work after 8:30 a.m. but denies that it agreed to change the plaintiff’s terms of employment in December 2011 or ever. Card said that he spoke to the plaintiff from time to time about her tardiness but acknowledged that the plaintiff was never disciplined. Card confirmed the plaintiff’s evidence that she was expected to, and did, attend early morning meetings or when asked. Custom also asserted that the plaintiff was shown latitude in her start time because she had suffered two miscarriages while at Custom (May and November 2012) and had told Custom her pregnancy in 2013 was high-risk.

[9] At the January 6, 2015 meeting, Custom explained to the plaintiff that there had been changes in the company’s operations while she had been on maternity leave which meant that the plaintiff had to be consistently at work by 8:30 a.m. At this meeting, the plaintiff disclosed to Custom that she had had a falling out with her mother, who had moved out, and that the plaintiff needed to arrange for outside daycare. The plaintiff told Custom that, while she had full-day daycare for her infant, she had only arranged for after school daycare for her older two children, based on her assumption that she would resume her previous work hours of 10:00 a.m. to 5:00 p.m.

[10] The plaintiff’s evidence was that as at January 6, 2015, her infant had a place in a daycare centre that was located en route to Custom and that this had been hard to find because few daycares accept infants younger than 18 months.

[11] At the conclusion of the January 6, 2015 meeting, the plaintiff advised Custom that she would see what she could do to find before school daycare for her two older children. The plaintiff testified that, following this meeting, she placed her children on a waiting list for before school care offered by her children’s school. Her evidence at trial was that this waiting list was approximately six months.

[12] The plaintiff did not return to work at Custom. She claims that she was unable to do so because she could not secure before school daycare for her two older children and because Custom would not accommodate her childcare needs.

The Plaintiff’s Claims

[13] The plaintiff asserts a number of claims including that:

1. Custom breached its obligation under the Employment Standards Act, 2000[^1] (the “ESA”) to reinstate her to the position she held prior to maternity leave;

2. the hours of employment offered to the plaintiff by Custom on January 6, 2015 were a unilateral change to a fundamental term of the plaintiff’s employment and by which the plaintiff was constructively dismissed. The plaintiff claims damages for wrongful dismissal equal to six months’ notice based on the income she earned at Custom in 2012, which was the last full year she worked at Custom;

3. when the plaintiff told Custom that the hours proposed conflicted with her childcare arrangements and family obligations, Custom had an obligation to accommodate her as required by the Ontario Human Rights Code[^2] (the “HRC”), which Custom failed to do. As a result, the plaintiff is entitled to:

(a) special damages in an amount equal to six months’ notice; and

(b) punitive damages in the amount of $20,000.

[14] The plaintiff acknowledges that she should not receive double recovery and that if damages are awarded for wrongful dismissal, special damages ought not to be awarded under the HRC.

[15] For the reasons set out below, I find that the plaintiff has failed to prove her claims and that her action must be dismissed.

The Facts

[16] To understand the events that preceded the plaintiff’s claim, it is helpful to start with the events of December 13, 2013, the plaintiff’s last day at Custom before the start of her maternity leave. The events of that day appear to have coloured the perceptions of the parties in their dealings concerning the plaintiff’s return to work: the plaintiff perceived Custom as trying to put up roadblocks to prevent her return to work and Custom perceived the plaintiff as angry and, possibly, spiteful.

[17] Sometime in the summer of 2013, Custom installed countertops at the home of the plaintiff and her husband. The plaintiff was unhappy with the installation, which she made known to Custom. As at December 2013, the plaintiff had not paid for the countertops. Card stated that before the plaintiff went on maternity leave, he wanted to meet with the plaintiff and members of Custom’s sales staff to discuss how to address the plaintiff’s concerns about the countertops and to arrange for payment. That meeting took place on December 13, 2013.

[18] The plaintiff’s evidence was that she was upset and felt threatened at this meeting and left with “tears in her eyes”. She stated that she thought that Card was accusing her of “trying to stiff” Custom by not paying for the countertops. She asserted that she thought she had been paying for the countertops by way of $500 deductions from her paycheques. The plaintiff said that following the meeting, she called her husband, Ben Peternel, from her car. She was very upset and crying on this call. Peternel became very angry at how he felt his wife had been treated, particularly given her advanced and high-risk pregnancy. He told the plaintiff that he would bring a cheque to Custom later that day and speak with Card.

[19] Peternel arrived at Custom later that day with a cheque. Upon arrival, he began to yell in Custom’s customer area. There is some evidence that Peternel may have thrown his cheque at Card. Card’s evidence was that Peternel calmed down when Card told Peternel he felt that Peternel was threatening him. Peternel generally confirmed Card’s evidence.

[20] The witnesses called by Custom differ from the plaintiff in their description of the December 13, 2013 meeting. Card stated that he said very little in this meeting and that his primary objective was not to obtain payment, but to resolve the plaintiff’s dissatisfaction with the countertops. Card and the Custom’s sales staff at the meeting describe observing the plaintiff to be “frustrated” but attributed that frustration to the countertop solutions offered, none of which appeared to make the plaintiff happy. None of the Custom witnesses observed the plaintiff to be upset or tearful or believed any accusations were levelled at the plaintiff, implied or otherwise.

[21] I accept that each witness viewed the December 13, 2013 meeting differently. Custom cannot be criticized for wanting to address the countertop issue before the plaintiff left on maternity leave. It appears reasonable to me for Card to have gathered the sales staff to meet with the plaintiff to discuss how to remedy her concerns and arrange for payment.

[22] At times in her evidence, the plaintiff’s credibility suffered. An early example occurred in her evidence about when she first began her employment with Custom. In chief, the plaintiff stated when she was first offered a job at Custom, she had asked to delay her start date by a week so that she could spend more time with her second child. The plaintiff asserted that Custom refused and gave her an ultimatum: “start on Monday or you do not get the job.” That evidence was unnecessary to prove the plaintiff’s claim and appears to have been given in order to show that, from the outset, Custom was insensitive and unaccommodating to the plaintiff’s childcare needs. In cross-examination, the plaintiff was confronted with an email that disproved her claim and showed that it was she who chose her start date with Custom.

[23] Likewise, I did not find the plaintiff’s evidence to be credible that, until the meeting of December 13, 2013, she believed that she had paid for the countertops by way of payroll deduction. It is more reasonable to conclude, which I do, that the plaintiff knew that there had been no deductions from her paycheques, and that she had not paid for the countertops because she was dissatisfied with them.

[24] Taken as a whole, the evidence leads me to conclude that Custom was a good employer to the plaintiff. Custom allowed the plaintiff flexibility with her hours, and showed her sympathy and accommodation following earlier miscarriages and throughout her last pregnancy. In return, Custom expected and understood that the plaintiff would be able to come to work in the early morning when required, and be willing and able to field early morning telephone calls from home or en route to work.

Events leading up to the January 6, 2015 meeting

[25] In the texts exchanged with the plaintiff on October 23, 2014, Allison stated: “Only thing left is the awkward chat with Mike – good luck with that!!” This comment is consistent with Card’s evidence that, given the events of December 13, 2013, before a date would be set for the plaintiff to return to work at Custom, he wanted to meet with her to clear the air and to confirm that the plaintiff was still willing to work with him.

[26] The next communication with the plaintiff and Custom was not until December 15, 2014. The plaintiff emailed Allison to advise that she was confirming daycare plans and needed to know “what the first day back in the new year is?” Allison responded that the plaintiff was required to provide a minimum of four weeks’ written notice if she wished to change her return date.

[27] In her evidence, Allison stated that she looked on the Internet and believed that when an employee seeks to return from maternity leave on a date other than the one year anniversary date, the employee was required to put that request in writing. Allison appears to have been mistaken in her understanding; as set out in the plaintiff’s factum, filed at the outset of trial, the four-week notice requirement applies when a person intends to cut short a pregnancy or parental leave (ESA s. 47(2) and s. 49(2)). The plaintiff’s evidence was that she saw Allison’s request as putting up roadblocks to her return.

[28] Set out below is a brief summary of the email and correspondence after the email exchange of December 15, 2014, that led up to the January 6, 2015 meeting:

December 16, 2014: plaintiff emails Allison stating January 12, 2015 would be her start date and requesting confirmation of that start date;

December 16, 2014: Allison replied that it was not up to her but that “it’s a conversation you need to have with Mike and he’s the one that needs to approve whatever the two of you agree on?!?”;

December 17, 2014: plaintiff emails Card asking him to accept her email as “second notice” of her return to work and whether January 12 would work as her start date;

December 17, 2014: Card replies that the plaintiff needed to come in to meet with him and Allison;

December 17, 2014: the plaintiff asks Card and Allison for meeting dates;

December 17, 2014: Card offers to meet on December 22 or 23;

December 17, 2014: Allison asks the plaintiff to bring a formal letter setting out her requested start date;

December 18, 2014: the plaintiff personally drops off the letter that had been requested by Allison. She did not ask to see Card or Allison, although both were at Custom on that date;

December 18, 2014: Allison confirms receipt of the plaintiff’s letter and again stated that a meeting was required and repeats the suggested meeting dates of December 22 or 23;

December 22, 2014: the plaintiff replies that she will attend at Custom the following day. Card confirms that will be okay;

December 23, 2014: the plaintiff emails Card to advise that she needs to reschedule the meeting because she had been up all night tending to her sick son. The plaintiff asks for new dates;

December 23, 2014: Card suggests December 24 or January 6, 2015; and

December 23, 2014: the plaintiff confirms January 6 works better for her.

1. The Plaintiff’s Reinstatement to Her Previous Position

[29] The evidence of the plaintiff was that aside from the lack of flexibility with the 8:30 a.m. start time, she saw no material change from the duties and responsibilities of her pre-maternity leave position to the position describer in Custom’s written offer of employment of January 6, 2015.

[30] The evidence at trial was that, prior to the plaintiff’s maternity leave, Card had been able to cover the Scheduler’s role in the early morning hours, until the plaintiff arrived at work, but that things had changed at Custom while the plaintiff was on leave. Custom’s business experienced a slowdown and Emmanuella DiGiovanni (“Manny”), who filled in as Scheduler while the plaintiff was on leave, was able to manage with little, if any, assistance from Card. As the plaintiff had done, Manny fielded calls before she arrived at work using her company supplied cell phone. When Manny was on medical leave in the fall of 2014, Manny’s replacement also did the job by herself; she arrived at work early in the morning.

[31] In or around December 2014, it became clear to Custom that, given their reduced sales, the role of Scheduler could be handled by one person. Also, Card realized that he needed to devote his time toward developing new business, rather than covering the Scheduler’s role in the early morning hours.

[32] I accept that Custom’s decisions were reasonable in the business environment that existed in late 2014 and that Custom’s desire to have the Scheduler cover the early morning hours was bona fide and was not intended as a way to put roadblocks in the way of the plaintiff’s return to work.

[33] In her email of January 18, 2015, the plaintiff, herself, acknowledged that the hours proposed by Custom would “seem reasonable under normal circumstances”. Her objection to the hours was that she only learned of them on January 6, 2015 and that Custom had failed in its duty to consult with her, as Custom knew that the plaintiff would need to arrange daycare for the new hours. The plaintiff asserted that had she been given more notice of the “changed hours”, she believed a reasonable accommodation could have been made “to the benefit of all.”

[34] Custom responded to the plaintiff’s arguments, in part, by pointing out that the plaintiff waited from December 17 to December 22 to confirm when she would be able to meet with Card and, when she had to reschedule the meeting of December 22nd, the plaintiff opted not to meet on December 24, 2014, but to wait until January 6, 2015. Custom also points out that, until January 6, 2015, it had no knowledge that the plaintiff’s mother no longer lived with the plaintiff and/or was no longer available to provide childcare.

[35] As explained below, I have concluded that when Custom required the plaintiff to be at work consistently by 8:30 a.m., it did not change her previous terms of employment. For that reason, it is not necessary for me to determine who may be at fault for any delay in the communications between the parties.

Obligation to Reinstate under the [ESA](https://www.canlii.org/en/on/laws/stat/so-2000-c-41/latest/so-2000-c-41.html)

[36] Section 53(1) of the ESA provides:

Upon the conclusion of an employee’s leave under this Part, the employer shall reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not.

[37] The employer is not obliged to reinstate an employee to the exact pre-maternity leave schedule when there has been a bona fide change during the leave. The purpose of the statute “is to preserve the employee’s rights as they would have been had a pregnancy or parental leave not been taken but not to freeze their duties in perpetuity”. An employee is entitled to return to a position which is “… substantive [sic] and qualitatively the same as the one she held prior to her leave.”[^3]

Disposition

[38] The trial evidence satisfies me that in its offer of employment of January 6, 2015, Custom met its obligation under the ESA to restore the plaintiff to the position she had held prior to her maternity leave or, alternatively, to a position that was substantively and qualitatively that same as the one she had held prior to her leave.

2. Did Custom’s offer of employment of January 6, 2015 constitute wrongful dismissal?

[39] The parties agree that the decision in Potter v. New Brunswick (Legal Aid Services Commission), 2015 SCC 10 sets out the test for constructive dismissal. The Potter test was succinctly summarized in Brake v. PJ-M2R Restaurant Inc., 2017 ONCA 402 at paras. 64 to 66:

[64] The test that Potter establishes for constructive dismissal consists of two branches. Satisfaction of either branch is sufficient for a finding of constructive dismissal.

[65] The first branch of the Potter test has two steps. First, the Court must determine objectively whether a breach has occurred. To do so, the Court must ascertain whether the employer has unilaterally changed the contract. If an express or an implied term gives the employer the authority to make the change or if the employee consents or acquiesces in it, the change is not a unilateral act and will not constitute a breach. To qualify as a breach, the change must also be detrimental to the employee. Second, once it has been objectively established that a breach occurred, the Court must ask whether a reasonable person in the same situation as the employee would have felt that the essential terms of the employment contract were being substantially changed (Potter, at paras. 37 – 39)

[66] The second branch of the Potter test necessarily requires a different approach. On this branch, constructive dismissal consists of conduct that, when viewed in light of all the circumstances, would lead a reasonable person to conclude that the employer no longer intended to be bound by the terms of the contract (Potter, at para. 42)

[40] Respecting the first branch of the Potter test, the Court must ask whether Custom’s offer of employment of January 6, 2015, that required the plaintiff to attend at work no later than 8:30 a.m. every day, constituted a change to the essential terms of its employment contract with the plaintiff. In contrast to the analysis under the ESA, the reason for the change in the terms of employment is not relevant to the issue of whether the plaintiff was constructively dismissed.

[41] Based on the facts outlined earlier in these Reasons, I conclude that the plaintiff’s loss of childcare coverage when her mother moved resulted in the plaintiff no longer wishing to resume work at Custom on her previous terms of employment. Despite that Custom had previously granted the plaintiff latitude in the time at which she arrived for work prior to her maternity leave, the evidence leads me to conclude that it always remained a term of her employment that the plaintiff be able to attend work close to 8:30 a.m., if asked to do so by Card, or if required to attend a meeting.

[42] I accept Custom’s evidence that, because of changing business circumstances, Custom could no longer offer the plaintiff the flexibility of arriving at work much later than 8:30 a.m. I conclude that when it insisted that the plaintiff maintain the original work hours of 8:30 a.m. to 4:30 p.m., Custom was not unilaterally imposing a change that substantially altered the essential terms of the plaintiff’s contract of employment; rather Custom was asking the plaintiff to do what she had done throughout her employment as Scheduler: to be at work when Custom needed her to be there.

[43] When she made it clear to Custom that, because of her childcare responsibilities, the plaintiff would never be available for work before 10:00 a.m., it was the plaintiff who was attempting to impose a unilateral change to the terms of her employment contract by changing her daily start time.

[44] The plaintiff also required a second change to her pre-maternity leave terms of employment: she was no longer willing to handle early morning calls using a company cell phone without additional remuneration, despite having agreed to those terms when she accepted the position of Scheduler. Custom, rightly, did not impose this unpaid duty upon the plaintiff. However, I conclude that, essential to the ability of Custom to offer flexibility to the plaintiff was her ability and willingness to field early morning calls and to attend work in the early mornings, when required to do so by Custom.

[45] The plaintiff also raised as an issue that Custom would no longer permit her to work through her lunch and to use her “lunch” at the end of the day, which would allow her to leave 30 minutes earlier. Custom explained that it was in breach of the ESA to allow an employee to work for 7.5 hours without a 30-minute meal break, a practice that had been discontinued at Custom in early 2014 with respect to all of its administrative staff. I conclude that the plaintiff cannot succeed in a claim that the employer has changed the terms of employment, when the change is driven by the employer’s need to act in compliance with applicable employment law.

Disposition

[46] Based on the evidence, some of which is touched on above, I conclude that the plaintiff has failed to establish that she was wrongfully dismissed on January 6, 2015.

Notice Period

Had I concluded that the plaintiff had been wrongfully dismissed, which I do not, I would have awarded her notice of three months using the Bardal”[^4] factors, assuming that the plaintiff had been employed by Custom from May 17, 2010 to January 12, 2015, the latter being the date given by the plaintiff for her return to work from maternity leave. However, based on the evidence relevant to mitigation, I would have reduced that notice period by approximately 40 percent from three months to six weeks, by reason of her failure to make any effort to mitigate her loss[^5].

3. Did Custom breach its obligation under the [HRC](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)?

[47] Section 5 (1) of the HRC prohibits discrimination with respect to employment because of “family status”. The jurisprudence makes it clear that the term “family status” includes substantial obligations owed by parents toward their children, which includes a childcare obligations.[^6]

[48] The plaintiff advances a claim under the HRC on the basis that Custom discriminated against her when it refused to accommodate her childcare needs by allowing her to begin her workday at 10:00 a.m.

[49] The parties referred to Johnstone v. Canada (Border Services Agency), 2014 FCA 110 as a leading case regarding discrimination on the basis of family status for the failure to accommodate childcare needs. Although the claim in Johnstone was brought under the Canadian Human Rights Act, RSC 1985, c. H-6, the analysis has been applied to the HRC by this court.[^7]

[50] Johnstone[^8] defines a prima facie case of workplace discrimination (at para. 93) as one in which the plaintiff has established that:

(i) the child is under her care and supervision;

(ii) that the childcare obligation at issue engages her legal responsibility for that child, as opposed to a personal choice;

(iii) that she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and

(iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfilment of the childcare obligation.

[51] Custom concedes that the plaintiff has met the first Johnstone factor but as to the second factor, while Custom acknowledges that the childcare obligation at issue engaged the plaintiff’s legal responsibility for her children, Custom asserts that taking her children to the bus is the plaintiff’s personal choice.

[52] With respect to the fourth Johnstone factor, Custom acknowledges that if the plaintiff is unable to obtain daycare, requiring her to attend at work without it would interfere in a manner that is more than trivial with the fulfilment of the plaintiff’s childcare obligation.

[53] Custom asserts that the plaintiff has failed to satisfy the third Johnstone factor. If strictly interpreted and applied, the plaintiff acknowledges that she faces a hurdle in meeting the third Johnstone factor. The plaintiff submits that, while she did have an obligation to look for reasonable alternative solutions to meet her childcare obligations, Custom ought to have given the plaintiff advance notice of the new inflexible work hours and, therefore, ought also to have given the plaintiff an immediate, albeit temporary, accommodation, and allowed her to return to work on her proposed work hours to allow her time to search for and secure alternative childcare solutions.

[54] The plaintiff described a Catch-22 situation: without a firm date on which she was to resume working at Custom, she did not wish to start paying for daycare; she also knew that unless she paid for daycare, she would lose her spots, making it impossible for her to resume her employment.

[55] The plaintiff stated that she began looking for daycare in February 2014, almost a year prior to the end of her maternity leave. She said that it was very difficult to find daycare for her infant; few daycares accept infants under the age of 18 months. Certainly, having daycare in place was essential to the plaintiff’s ability to work outside the home. While covering the cost of daycare indefinitely without income from the plaintiff might have become financially burdensome, Peternel had a high-paying job and the couple also owned an income property. It is reasonable to conclude that the family resources could have afforded daycare for a short time, for the month of January, and possibly February, without undue hardship.

[56] Both parties also referred this Court to Misetich v. Value Village Stores Inc., a 2016 decision of the Human Rights Tribunal of Ontario[^9]. The Tribunal in Misetich rejected the Johnstone four-step approach that a claimant had to satisfy to establish a prima facie case of discrimination when the discrimination related to childcare. The Tribunal disagreed with the proposition that to prove discrimination an applicant should be required to establish that she could not “self-accommodate the adverse caused by a workplace rule”.[^10] Misetich concluded that Johnstone created a different test for family status discrimination than for other forms of discrimination, and may also have inadvertently set a higher test to be met when showing family status discrimination than required for other kinds of discrimination.

[57] In Misetich, the Tribunal held that to show family status discrimination in the context of employment, an employee would have to show not only a negative impact on a family need but also that the negative impact “must result in real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship, and/or to the employee’s work. For example, a workplace rule may be discriminatory if it puts the employee in the position of having to choose between working and caregiving, or if it negatively impacts the parent/child relationship and the responsibilities that flow from that relationship in a significant way.”[^11] The Tribunal further stated that assessing the impact of a workplace rule must be done “contextually and may include consideration of other supports available to the applicant”.[^12]

[58] In the case here, the “workplace rule” was identified as the requirement that the plaintiff begin her workday at 8:30 a.m. Assessing that impact contextually, consideration would have to be given to such things as whether before school care is available to meet the plaintiff’s childcare needs; whether placing the children in before school care had a negative impact upon the plaintiff’s parent/child relationship; and, if so, whether the impact would be significant.

[59] Recognizing the similarity between “contextual considerations” and inquiries about “self-accommodation”, Misetich distinguished its approach from the Johnstone self-accommodation approach as follows:

Requiring an applicant to self-accommodate as part of the discrimination test means the applicant bears the onus of finding a solution to the family/work conflict; it is only when he/she cannot that discrimination is established. This is different than considering the extent to which other supports for family-related needs are available in the overall assessment of whether an applicant has met his/her burden of proving discrimination. (at para. 56)

[60] The plaintiff does not allege, nor did she lead any evidence that could meet the Misetich test, that placing her school-aged children in before school daycare would have a negative impact on a family need nor that any alleged negative impact would result in a “real disadvantage to the parent/child relationship” or put her in a position of having to choose between “working and caregiving” if she had to find before school care for her two older children. The plaintiff readily acknowledged that there were a number of pre-school daycare options available to her in her community and that the hours she was being asked to work were reasonable. Further, unlike the example used in Misetich of the potential for a greater impact of a workplace rule upon a single parent, here, the plaintiff is raising her children in a financially secure, two-parent home.

[61] If the plaintiff proves discrimination, the onus shifts to Custom to show that the plaintiff could not be accommodated to the point of undue hardship. The plaintiff asserts that Custom ought to have accommodated her, at least in the short term, by allowing the plaintiff to work from 10:00 a.m. to 5:00 p.m. while she was waiting for an opening on the before school daycare list at her children’s school.

Duty to Co-operate in Accommodation Process

[62] In Misetich, the Tribunal determined that accommodation is a “joint process”, which requires the applicant to co-operate with the employer in the accommodation process by providing the employer with information concerning the family-related needs and working with the employer to identify possible solutions.[^13]

[63] In fact, the plaintiff provided Custom with very little information about her childcare arrangements. Until January 6, 2015, Custom had believed that the plaintiff’s mother was living with her and was assisting with childcare.

[64] The plaintiff failed to provide Custom with key information concerning her need for accommodation: she did not tell Custom that she had not paid for daycare and that without a firm January start date, she would lose all her daycare; she did not tell Custom how difficult it had been for her to find daycare for her then 13-month old infant; the plaintiff did not tell Custom that she had secured temporary before school care through a neighbour, which would bridge the gap until a before school daycare spot opened up at her children’s school; or that (as she alleged at trial) unless she were permitted to start her workday at 10:00 a.m., even on a short-term basis, the plaintiff would forfeit her daycare spots and would be unable to return to Custom on any terms.

[65] On the basis that the accommodation required was a 10:00 a.m. start to the plaintiff’s workday, Custom offered the plaintiff an alternate position, which would have allowed her to start at 10:00 a.m. The plaintiff did not respond at all to Custom’s option “B”. This alternate position would have been within the plaintiff’s skills and experience and at a salary similar to that of Scheduler.

[66] The plaintiff explained that she did not feel it necessary to respond to this alternate job offer as Custom “would have known” that she could not have accepted a job that required her to work until 7:00 p.m., because she could not secure daycare until 7:00 p.m., or to work on Saturdays, because her husband was travelling.

[67] Despite that she had agreed to look for it, the plaintiff admitted that she provided Custom with no details about her efforts to secure before school care. At trial, when asked for details of the childcare arrangements she had made, the plaintiff provided few details of those arrangements. In responding to the important question of when the plaintiff had been told by her daycare providers that she either had to provide a deposit, pay for the daycare, or risk losing her spots, the plaintiff was evasive. In her testimony, she claimed that, as a mother of three children, she could not be expected to recall such details and had no expectation that she would need to make a note of or recall those dates. On this important issue, I found the plaintiff’s credibility lacking.

[68] It was clear from the plaintiff’s evidence that in December 2014 she believed that Custom was putting up roadblocks to her return to work. The plaintiff’s email of January 12, 2015 reveals some understanding of her rights and Custom’s obligations when she states: “I believe there is something that requires you as my employer to be more reasonable in providing more options to accommodate my family status. I welcome to look at an option B to set a start date and move forward.”

[69] I conclude, therefore, that the plaintiff was not being truthful at trial when she said that she did not anticipate having to record the details of her childcare arrangements. It is reasonable to infer that those details would not have been helpful to the plaintiff’s assertion respecting the childcare she had available to her in January 2015 and the date on which she forfeited that childcare.

[70] Had the plaintiff provided Custom with information about her daycare situation, and Custom then refused to co-operate in accommodating the plaintiff, she might have been able to establish that the work hours required by Custom constituted adverse treatment on the basis of her family status. However, as the Tribunal concluded in Misetich, all of that is “theoretical” [^14]because the plaintiff did not provide that information to Custom.

[71] Moreover, the plaintiff was not truthful to Custom about her childcare. In her email of February 6, 2015, the plaintiff told Custom that she could “return to work immediately if you can accommodate the hours of 9:30-430 or my original shift of 10-5, as I have the aftercare in place.” By that date, the plaintiff had no daycare whatsoever in place and would not have been able to then return to work at Custom on any terms.

[72] In cross-examination, when confronted with her evidence that by the end of January 2015 she had no daycare at all in place, the plaintiff answered that she was “very confused”. When it was put to her that as of February 6, 2015, she had no daycare for her baby, the plaintiff answered that she was “grasping at straws” to see if Custom would put up another roadblock. When it was put to her that by her February 6, 2015 email the plaintiff was trying to “set up” Custom, the plaintiff responded: “As they did to me… It wasn’t set-up, I knew they [Custom] wouldn’t take it [her offer]”.

[73] By failing to disclose to Custom her true childcare needs, the plaintiff thereby frustrated any efforts that might have been made by Custom to accommodate those needs.

Disposition: HRC Claim

[74] Whether the Court follows the Misetich approach or applies the Johnstone factors, the outcome is the same: the plaintiff has failed to show that Custom’s request that she begin her workday at 8:30 a.m. is discriminatory. Accordingly, for all the reasons set out above, I conclude that the plaintiff has failed to establish that Custom is in breach of the HRC or is liable to the plaintiff in any way for damages as a result.

[75]

Overall Disposition

[76] The plaintiff’s claim is hereby dismissed in its entirety.

Costs

[77] The defendant is presumptively entitled to its costs of this action, subject to any offers to settle that might affect costs. If the parties cannot agree on costs, then the defendant may make submissions in writing within 21 days of the date of the release of these Reasons. The plaintiff shall deliver her reply submissions within 14 days of service upon her of the defendant’s costs submissions. The defendant may have seven days from the date of service upon it of the plaintiff’s cost submissions to deliver a reply, if any, to the plaintiff’s cost submissions.

[78] All cost submissions are not to exceed three typed pages in length and may also include the parties’ Bills of Costs; supporting evidence respecting time and disbursements; copies of any relevant offers to settle; and briefs of authority, if required.

Date of Release: June 5, 2018

Sheard, J.

[^1]: S.O. 2000, c. 41 [^2]: R.S.O. 1990, c. H.19 [^3]: Kingston Independent Nylon Workers Union v. Page, 2003 CanLII 40803 (OLRB), at para. 15. [^4]: Bardal v. Globe & Mail Ltd., 1960 CanLII 294 (ON SC), [1960] O.J. No. 149 (Ont. H.C.) [^5]: see: Sinnathamby v. The Chesterfield Shop Limited, 2016 ONSC 6966 [^6]: Johnstone v. Canada, 2014 FCA 110 (“Johnstone”); Partridge v. Botany Dental Corporation, 2015 ONSC 343, affd 2015 ONCA 836; Wing v. Niagara Falls Hydro Holding Corporation, 2014 HRTO 1472 [^7]: see: Partridge, and Wing, supra [^8]: at para 93 [^9]: 2016 HRTO 1229 [^10]: at para 48 [^11]: Misetich, at para. 54 [^12]: supra [^13]: at para 57 [^14]: At para. 72