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Choice of Forum and ESA Leave Reprisals
Employment Law

Choice of Forum and ESA Leave Reprisals

By August 12, 2020 October 26th, 2020 No Comments

One of the most important decisions an employment lawyer must make when they first assess a claim is deciding the appropriate forum in which to bring a potential claim. Generally, a legal issue stemming from a specific circumstance cannot be litigated in more than one forum. As an example, a worker who has been terminated from their employment shortly after they announced their pregnancy cannot commence an application before the Ontario Human Rights Tribunal (the “Tribunal) and a claim before the Ministry of Labour (the “Ministry”). ‘Double dipping’ in such a manner is considered an abuse of process, and where it does occur, the legal doctrine of res judicata would apply to bar the claim from proceeding in parallel forums. The system also prevents an issue from being re-litigated. So, if a party is unsuccessful in one forum, it cannot shop around in other forums until it is eventually granted the relief sought. This makes forum selection all the more important since a party only has one kick at the can.

Workers who have gone on any kind of leave provided for by the Employment Standards Act, 2000, (including maternity, parental and sick leave), have a right to be reinstated to their employment when their leave ends. The employer is obliged to reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position. Upon their return, the employee is entitled to a rate of pay that the employee would be earning had he or she worked throughout the leave.

Section 74 of the Act prohibits an employer from acts of reprisal against the employee for exercising, or attempting to exercise, his or her rights according to the act. Accordingly, an employer cannot retaliate against an employee if the employee is or will become eligible to take a leave, intends to take a leave, or takes a leave. Where an employee submits a claim to the Ministry of Labour’s Employment Standards Branch alleging that the employer has prejudiced them for taking leave, the burden of proof that an employer did not contravene section 74 lies upon the employer.

Ministry of Labour Claim as a Choice of Forum

Some forums and tribunals are more efficient than others. Some forums enable adjudicators to grant greater damages or compensation, depending on the legislation that empowers them to make such decisions. Most of the time, the most pressing considerations as they relate to forum selection are efficiency and the quantum of damages that can be awarded.

When compared to the Ontario Human Rights Tribunal, Ministry claims are efficient tribunal processes that are adjudicated by an employment standards officer. Decisions are typically rendered within a matter of 2-3 months. Human rights applications can last 2-3 years. Accordingly, Ministry claims offer a far more time-effective resolution to workplace issues than the Tribunal since it is experiencing heavy backlogs.  Where the employee or employer is not satisfied with the officer’s decision in a Ministry claim, either (or both) parties have a right of appeal called an “Application for Review” to the Ontario Labour Relations Board, which is also a time-efficient process.

Where the employee has laid out sufficient evidence of reprisal, and the employer fails to meet the necessary burden of proof, the employment standards officer has the power to reinstate the employee. However, where the employee does not wish to return to the employer, the officer can also award damages. Many mistakenly presume that the damages awarded by an officer are a pittance compared to those awarded by the Tribunal. Typically, the employment standards officer has the power to award damages (called an order to pay) under four heads:

  1. Loss of wages – including vacation pay

If reinstated, this head of damages is typically the amount of backpay owed to the employee from the date of the officer’s decision to the employee’s termination date. If the employee is not reinstated – the consideration is similar to reasonable notice damages: the damages account for the amount of time it took or should take to find alternative employment. The length of employment and mitigation efforts are both considered.

  1. Expenses for job search (only if not reinstated)

This head of damages reflects the actual costs incurred by a claimant to find a new job. In order to successfully claim such damages, the employee is required to present receipts and invoices for reasonable expenses incurred during their job search.

  1. Loss of reasonable expectation of continued employment

This head of damages is only awarded if the employee is not reinstated. It is also called loss of employment and is awarded in lieu of reinstatement. The loss of employment as a result of reprisal has a value that is separate and distinct from the notice entitlements to which employees may be entitled. The most relevant factor here is length of employment.

  1. Emotional pain and suffering

This head of damages compensates for the humiliation and real hurt that is caused to a person when they are terminated in violation of the Act. Maximum damages are awarded when a Claimant submits medical evidence regarding stress and depression.

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