Ontario Cancer Treatment and Research Foundation et al. v. Human Rights Commission (Ont.), (1998) 108 O.A.C. 289 (DC)

• Judge: Southey, Rosenberg and Swinton, JJ.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: January 21, 1998
• Jurisdiction: Ontario
• Citations: (1998), 108 O.A.C. 289 (DC)

Ont. Cancer Treatment v. HRC (1998), 108 O.A.C. 289 (DC)

MLB headnote and full text

Temp. Cite: [1998] O.A.C. TBEd. FE.001

Ontario Cancer Treatment and Research Foundation and Ottawa Regional Cancer Centre (appellants) v. Ontario Human Rights Commission (respondent)

(Court File No. 565-96)

Indexed As: Ontario Cancer Treatment and Research Foundation et al. v. Human Rights Commission (Ont.)

Ontario Court of Justice

General Division

Divisional Court

Southey, Rosenberg and Swinton, JJ.

January 21, 1998.

Summary:

An oncologist took vacation leave for the birth of her second child. She developed post-partum depression and a stress-related condition. Her employer denied her access to sick leave. It argued that she was on unpaid maternity leave and all employees on unpaid leave were excluded from sick leave bene­fits. The oncologist filed a complaint with the Human Rights Commission. The Board of Inquiry concluded that she was discrimi­nated against on the basis of sex and ordered the employer to cease applying the sick leave plan so as to exclude women oncolo­gists from benefits for the period after child­birth that they were unable to work for health-related reasons. The employer appealed.

The Ontario Divisional Court dismissed the appeal. The court held that the employer's interpretation of the sick leave plan to deny benefits to the oncologist and others like her constituted discrimination. The court affirmed the Board's order requiring the employer to apply the sick leave plan to include the oncologist and others in a similar situation.

Civil Rights - Topic 983

Discrimination - Employment - What constitutes discrimination - An oncologist took vacation leave for the birth of her second child - She developed post-partum depression and a stress-related condition - Her employer denied her access to sick leave, arguing that she was on unpaid maternity leave and all employees on unpaid leave were excluded from sick leave benefits - The Human Rights Com­mission concluded that the oncologist was discriminated against on the basis of sex and ordered the employer to cease apply­ing the sick leave plan so as to exclude women oncologists from benefits for the period after childbirth that they were unable to work for health-related reasons - The Ontario Divisional Court held that the employer's interpretation of the sick leave plan constituted discrimination - The court affirmed the order requiring the employer to apply the sick leave plan to include the oncologist and others in a similar situation.

Civil Rights - Topic 999.7

Discrimination - Employment - Sick leave benefits (incl. under insurance plan) - [See Civil Rights - Topic 983 ].

Cases Noticed:

Brooks, Allen and Dixon et al. v. Canada Safeway Ltd. (1989), 94 N.R. 373; 58 Man.R.(2d) 161; 59 D.L.R.(4th) 321 (S.C.C.), refd to. [para. 4].

Saskatchewan Teachers' Superannuation Commission v. Anderson et al. (1995), 137 Sask. R. 211; 107 W.A.C. 211; 130 D.L.R.(4th) 602 (C.A.), refd to. [para. 8].

Ontario Public Service Employees Union v. Ross Memorial Hospital (1991), 50 O.A.C. 241 (C.A.), refd to. [para. 10].

Ontario Secondary School Teachers' Fed­eration, District 34 v. Barton et al. (1996), 91 O.A.C. 253; 136 D.L.R.(4th) 34 (Div. Ct.), refd to. [para. 13].

Ontario Secondary School Teachers' Fed­eration, District 34 v. Essex County Board of Education - see Ontario Sec­ondary School Teachers' Federation, District 34 v. Barton et al.

Alberta Hospital Association et al. v. Par­cels et al. (1992), 129 A.R. 241; 17 C.H.H.R. D/167 (Q.B.), refd to. [para. 15].

Zurich Insurance Co. v. Human Rights Commission (Ont.), [1992] 2 S.C.R. 321; 138 N.R. 1; 55 O.A.C. 81; 93 D.L.R.(4th) 346 (S.C.C.), refd to. [para. 21].

Statutes Noticed:

Employment Standards Act Regulations (Ont.), R.R.O. 1990, Reg. 321, sect. 8, sect. 10 [para. 7].

Counsel:

Douglas Gray, for the appellants;

Naomi Overend and Isfahan Merali, for the respondent.

This appeal was heard before Southey, Rosenberg and Swinton, JJ., of the Ontario Divisional Court. On January 21, 1998, Swinton, J., released the following judgment for the court.