Pregnancy and the burden of proof: Grudonic v. Ray Daniel Salon & Spa

September 27, 2017 Kevin Sambrano, Sambrano Legal Services Employee Relations, HR Policies and Procedures, Human Resources, Human Rights

In an application under s. 34 of the Ontario Human Rights Code, the burden of proof lies with the applicant. Once the applicant has established a prima facie case of discrimination, the burden then shifts to the respondent to justify their conduct.

The Tribunal will examine documentary evidence such as witness testimony, including that of the applicant and the respondent. In Grudonic v. Ray Daniel Salon & Spa, the onus was on the applicant to establish a prima facie case of discrimination that her pregnancy was a factor in her termination from her place of employment.

The matter

The applicant alleged having started work with the respondent on June 16, 2011, and that she informed the respondent of her pregnancy during the first week of August. She further alleged that after informing her employer, she was subsequently terminated on September 17, 2011.

Analysis

Based on the applicant’s application and subsequent testimony there existed a number of facts that were contracted by the respondent. Of note was the alleged start date where the respondent submitted contradictory evidence by way of the applicant’s time-sheets indicating a start date of June 23, 2011. The applicant responded by alleging the time-sheets were fraudulent.[i]

The respondent’s evidence included a contract signed by the applicant on June 24 of that year acknowledging a probationary period of five months. The applicant alleged that the probationary clause was added following her having signed the contract.[ii]

The applicant alleged differential treatment following the announcement of her pregnancy, an allegation which was contrary to her application that indicated the incidents of differential treatment had taken place in July, prior to the respondent’s knowledge of her pregnancy.

The respondent lead evidence that the applicant had a history of lateness and various other work-related issues. On September 17, 2011, the applicant left work early in spite of being warned by the respondent that this conduct would result in the applicant’s termination.[iii]

Decision

The Tribunal found that much of the applicant’s evidence was not reliable, deciding instead to accept the evidence of the respondent.[iv] The Tribunal’s ruling stated:

“…the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.”

The standard of proof is based on a balance of probabilities, which is to say, the applicant must prove that it was more likely than not that the alleged conduct occurred. In this matter, the Tribunal did not attribute the applicant’s termination to be pregnancy-related in whole or in part, instead ruling that the applicant was terminated due to her attendance record. The application was dismissed.

Takeaway

In human rights applications, the onus is on the applicant to provide credible evidence in order to substantiate code-related breaches. Employers must also take care to insure that any termination must be based on non-Code grounds, as reasons for termination may be carefully scrutinized.

[i] Grudonic v. Ray Daniel Salon & Spa 2013 HRTO 193, para. 6

[ii] Ibid., para. 6

[iii] Ibid., para. 15

[iv] Ibid., para. 17

Also see:

Howell v. Steelworkers

Summary hearings at the HRTO: Is an alternative explanation enough?

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Kevin Sambrano, Sambrano Legal Services

Paralegal at Sambrano Legal Services

Kevin Sambrano, B.A.A. is a paralegal who is passionate about law. Kevin has the distinction of being the first paralegal candidate to participate in the Community Legal Aid Services Programme at Osgoode Hall Law School. Sambrano Legal offers legal representation in human rights, landlord and tenant, employment, and Small Claims Court matters within the GTA. Kevin has been a regular contributor to First Reference Talks since 2014 with over 44 published articles relating to human rights and employment law.Read more