Divisional Court upholds Superior Court decision that a pregnancy impacts the notice period of a terminated employee

A recent decision by the Divisional Court, called Nahum v Honeycomb Hospitality Inc., the Court was required to decide the question of whether a pregnancy should increase the length of a notice period of an employee who had their employment terminated whilst pregnant. The employer was not aware that she was pregnant at the time of the termination.

We have written about this case before, in our spring newsletter. For an overview, please follow the link attached: https://5b0cc7.a2cdn1.secureserver.net/wp-content/uploads/2021/05/Bird-Richard-Newsletter-Spring-2021.pdf

As a brief summary, in the original decision, an employee brought an action against her employer after having her employment terminated without cause. She was terminated after four and a half months commencing work, and she was 5 months pregnant. She was hired as the Director of People and Culture.  At trial, the employee argued that she should be entitled to eight months’ notice. Part of the reason that she claimed the notice period was so high, was because that she was also pregnant. There were no allegations of discrimination in this case, but the employee sought an inflated notice period because of her pregnancy and its impact on her ability to seek other work. The motion judge awarded 5 months’ notice.

As a refresher, when determining reasonable notice under the common law, the Court will apply the Bardal factors: age, length of service and availability of similar employment. It is also important to note that the purpose of reasonable notice is to provide a terminated with time to secure comparable alternative employment. At the Divisional Court, the employer argued that the motion judge made an error by considering pregnancy as a Bardal factor and taking judicial notice of pregnancy as a factor in the ability to secure employment without evidence. The Divisional Court disagreed. The Divisional Court stated that while pregnancy does not automatically lead to an extension of the notice period, each case must be considered on its own facts and here, the pregnancy had an impact on her ability to find other work. At paragraph 16, the Court said considering pregnancy as a Bardal factor is consistent with the Bardal framework because each case must be determined on its own facts.

It should be noted that the employer in Nahum was not even aware that the employee was pregnant at the time of termination. The decision seems to result in a very harsh outcome for the employer, given the complete lack of knowledge that they would have in such a case to be able to properly assess or rectify the situation. Given that the Divisional Court reaffirmed the decision, this is the law that currently exists in Ontario. As a preventative measure against such a decision, employers can take measures to reduce exposure to this type of claim by ensuring that they have a properly drafted termination clause in an employment contract.

If you have any questions about the case, or termination clauses reach out to us.

Authored by: Travis Ujjainwalla

The material presented in this blog is to present general information on the subject matter and should not be regarded or relied upon as legal advice or opinion.