A trilogy of cases

A look at decisions of the B.C. Supreme Court reviewed by an Alberta court when it ruled on a case involving reasonable notice and parental leave

In its decision in Kyluik v. Cardiac Wellness Institute of Calgary Inc., the Alberta Provincial Court look at three decisions by the British Columbia Supreme Court.

Linda Kyluik argued the Alberta court ought to follow the B.C. court’s reasoning in three decisions involving maternity and parental leave and reasonable notice.

Case one

The first case was Aimola v. Cooper Market Ltd. In that case, the B.C. court was asked to consider if an employer could rely upon all or a portion of an employee’s maternity leave to coincide with notice given of termination of employment. In that case, the B.C. court said:

“... I find myself in accord with counsel for the plaintiff in seeking to draw the analogy from the Employment Standards Act that any period of notice given to employees shall not coincide with his or her vacation period, and reading in company with that the provisions of sections 53, 54, and 55 of the Employment
Standards Act
, the same principle should apply with respect to maternity leave. .... In my view, an employer cannot avoid this requirement and by giving notice before or during the maternity leave period and then, notionally, requiring the employee to perform her employment, and being unable to do so, refuse to pay her severance pay.”

Case two

The next case Kyluik wanted the Alberta court to look at was Whelehan v. Laidlaw Environmental Services Ltd. In Whelehan the court considered the termination of an employee shortly before she commenced her maternity leave and the employer's position that the period of notice commenced on the date termination. In that case the B.C. Supreme Court said:

“It is useful to compare the underlying purposes of reasonable notice and maternity leave. The law requires employers to provide dismissed employees with compensation for an adequate period of time to enable them to pursue suitable re-employment without unreasonable financial disadvantage. The philosophy behind maternity leave is that women who are pregnant are entitled to a leave of absence from their jobs in order to accommodate childbirth and they are entitled to the assurance that their job tenure is secure during the period of their absence. That philosophy is reflected in s. 56 of the Employment Standards Act, R.S.B.C. 1996, c. 113 ('the Act') which provides that the services of an employee on maternity leave are deemed to be continuous for the purposes of calculating vacation entitlement, pensions, medical benefits or other plans beneficial to the employee.

“The policy basis underlying maternity leave — protecting pregnant women against penalties with respect to their job tenure and other terms of their employment by reason of pregnancy and childbirth —would be defeated if an employer could terminate a pregnant employee at the commencement of her maternity leave so that her period of notice was spent during that leave.

“I conclude that Ms. Whelehan's maternity leave should not coincide with the applicable notice period which I have determined to be eight months.”

Case three

The final case is that of Wells v. Patina Salons Ltd. (2004), 29 C.C.E.L. (3rd) 211. In that case, the court commented on the rationale behind the protection extended to mothers on maternity leave in the following terms:

“There was also an issue of whether the plaintiff's maternity leave interrupted the notice period or whether the notice period ceased at that point. Madam Justice Allan discussed this issue in Whelehan v. Laidlaw Environmental Services Ltd.. In that case, the plaintiff was on maternity leave when the defendant gave her notice of termination, but in my view the same reasoning should apply. Pregnant women are entitled to take a leave of absence from their jobs in order to accommodate childbirth and they are also entitled to an assurance that their job is secure during their absence. This policy of protecting women from penalties in the workplace due to pregnancy would be defeated if an employer could include maternity leave as part of a notice period.”

For more information see:

Aimola v. Cooper Market Ltd., 1989 CarswellBC 662, 27 C.C.E.L. 248 (B.C. S.C.)

Whelehan v. Laidlaw Environmental Services Ltd., 1998 CarswellBC 823, [1998] B.C.J. No. 847, 37 C.C.E.L. (2d) 34, 55 B.C.L.R. (3d) 129 (B.C. S.C.)

Wells v. Patina Salons Ltd., 2003 CarswellBC 2819, 2003 BCSC 1731, 29 C.C.E.L. (3d) 211 (B.C. S.C.)

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