Employee who was terminated while pregnant entitled to an extended notice period, Divisional Court confirms

November 22, 2021

In its recent decision of Nahum v Honeycomb Hospitality Inc., the Ontario Divisional Court unequivocally confirmed that pregnancy is a factor to be considered when determining the notice period for a wrongfully dismissed employee.

The Decision

The plaintiff employee was terminated without cause after 4.5 months of service. At the time of termination, she was 28 years old working as a Director of People and Culture earning $80,000 plus benefits. She was also five months pregnant.

Following her termination, the employee had applied for 36 jobs before her baby was born and 75 jobs since the birth. Despite her efforts, she only received one interview and no offers of employment.

The employee sued for wrongful dismissal. On summary judgement, Justice Akbarali concluded that the employee’s pregnancy impacted the reasonable notice period and awarded a five-month notice period. The employer appealed the decision, arguing (amongst other things) that pregnancy should not be a factor in determining the reasonable notice period particularly where (as here) the employer did not know the employee was pregnant.

The Divisional Court dismissed the employer’s appeal and upheld the motion judge’s decision. It stated that while pregnancy will not automatically extend the notice period in every case, it should still be considered as a Bardal factor when determining the notice period. Named after the seminal decision of Bardal v Globe & Mail Ltd., the Bardal factors (including age, length of service, character of employment, and availability of similar employment) are used to determine an employee’s reasonable common law notice period. The balancing of the factors has been described as an art, not a science, and is largely based on the facts of the given case.

The Divisional Court noted that considering pregnancy as a Bardal factor is consistent with the well-established framework that each case must be determined on its own facts, and courts have already taken judicial notice of the fact that pregnancy makes re-employment more difficult.

Key Takeaways

The five-month notice period award may appear generous considering that the employee was only employed for four and a half months. However, this goes to show that the employee’s length of service is only one Bardal factor in the reasonable notice assessment to be weighed against several others: most notably in this case, the employee’s pregnancy.

This decision represents a strong statement from an appellate court that pregnancy is a Bardal factor and will be considered in the notice period assessment. How much weight this factor will be given will turn on the facts of the case, including how far along the pregnancy is at the time of termination, market conditions for re-employment, and whether the pregnancy impedes the employee’s ability to secure another comparable job. As emphasized by the Divisional Court in this case, pregnancy will be one of several Bardal factors that should be weighed in a notice period assessment; pregnancy will not automatically lead to an extension of the notice period in every case.