In a recent decision of Nahum v. Honeycomb Hospitality Inc., 2021 ONSC 1455, the Ontario Superior Court ruled that pregnancy at the time of dismissal is an important factor in calculating the length of reasonable notice period and awarded five (5) months’ notice to the Plaintiff who had a short service of only four and one half (4.5) months.
Ms. Nahum was twenty-eight (28) years old and about five (5) months pregnant at the time of her termination. She had been employed as a Director of People and Culture with the Defendant for four and one half (4.5) months. Ms. Nahum made a compensation of $80,000 per annum with benefits. She was terminated without cause. Ms. Nahum mitigated her loss by actively looking for a job only two (2) months after she gave birth. She did not secure any employment at the time of the trial.
The parties agreed that there was no enforceable termination provision in Ms. Nahum’s employment contract. The Plaintiff argued that she was entitled to eight (8) months’ notice, while the Defendant argued that a two (2) month notice is generous.
1. Bardal Factors
Employees are generally entitled to common law reasonable notice or pay in lieu when they are terminated by the employer without cause, if there is no valid or enforceable termination provisions in the employment contract that limit their entitlement to the statutory minimums.
The assessment of common law notice period is case-specific. The Court fully considered the core factors established in the case of Bardal v. Globe & Mail Ltd, 24 D.L.R. (2d) 140 (Ont. H.C.) in calculating the length of reasonable notice, namely
- Character of the Employment;
- Length of Service;
- Age of Employee;
- Availability of Similar Employment Having Regard to the Employee’s Experience, Training, and Qualifications
The Court noted that the character of Ms. Nahum’s position was that of mid-level management.
Her service with the Defendant was short. Since she was twenty-eight (28) years old at termination, it would not pose as an impediment for her to obtain similar positions. The Court also concluded that Ms. Nahum had the education and skills required for many available positions but the market was competitive.
2. Pregnancy, an Important Factor in Measuring the Reasonable Notice Period
The Court has also considered the additional factor pregnancy in determining the length of the reasonable notice period in this fact pattern.
The Court reviewed case law on this point. It noted that in Harris v. Yorkville Sound Ltd., 2005 CanLII 46394 (Ont, S.C.), the judge did not require evidence to find that pregnancy does not enhance immediate employability. It also noted that in Ivens v. Automodular Assemblies Inc.,  O.J. No. 3129, 162 O.A.C. 124 (Div.Ct.), the appellate court found that pregnancy complications are a “Bardal-type” factor that should be considered in determining the length of reasonable notice.
The Court did not agree with the Defendant’s submission that it is problematic to find that pregnant people are less likely to find employment. The Court noted that an employer may have an immediate need for someone in the role, thus making it unappealing if a new employee will shortly require a lengthy leave and may not meet bona fide needs of the organization (para. 43). The Court stated that a person’s pregnancy is likely to increase the amount of time for them to find new employment and it does not need evidence to reach such conclusion. The Court emphasized that it is open to it to take judicial notice that pregnant people face additional challenges when looking for work (para 46).
However, the Court also emphasized that pregnancy does not always impede a job search. It should be assessed on a case-to-case basis. If a person’s pregnancy at the time of dismissal is reasonably likely to negatively impact their ability to find alternative employment, this should factor into the determination of the reasonable notice period.
In this fact pattern, the Court ruled that pregnancy should factor into the calculation of Ms. Nahum’s reasonable notice period. Given that Ms. Nahum was terminated when she was five (5) months pregnant, it would be impossible for her to find alternative employment in the two (2) month period proposed by the Defendant. The Court awarded a five months’ notice.
If you are experiencing any issues in connection to your employment due to pregnancy, Top Toronto employment lawyer, Stacey ball can help you determine your legal options. Please call us at 416-921-7997, extension 227.