In McEvoy v. Best Care Ltd. the Newfoundland and Labrador Court of Appeal tackles the question of whether the termination of the employment of a female home care worker prior to her return-to-work after maternity leave constituted discrimination on the basis of sex. The decision is of interest for the approach the court takes to examining the facts of the case.
The Facts
Ms. McEvoy was a home care worker whose employment was funded jointly by the Newfoundland and Labrador Department of Health and Community Services and a Mr. Dalton, an 80-year old man with health problems who required services under the province's Home Support Program. The province funded 75% of Ms. McEvoy's employment while Mr. Dalton funded 25%. Along with his family, Mr. Dalton chose Ms. McEvoy to be his home care worker to enable him to live in his own home. They requested that Best of Care Ltd., a corporation and agent of the Crown responsible for the administration and delivery of home support services in Eastern Newfoundland, hire Ms. McEvoy as an employee and manage her pay.
Ms. McEvoy commenced working as Mr. Dalton's home care worker on April 17, 2000. Throughout her time working for Mr. Dalton they had a positive relationship and there were no complaints about her job performance. Ms. McEvoy became pregnant and subsequently went on maternity leave on August 5, 2001. At the time, she advised Mr. Dalton's family that she would not be returning to work until January 2, 2002. At the request of the Dalton family, Best of Care Ltd. hired another female home care worker to temporarily replace Ms. McEvoy.
While Ms. McEvoy was on maternity leave, Mr. Dalton had surgery. As a result, he now required assistance with bathing, getting dressed and going to the washroom.
Between December and March 2002, discussions occurred between the Dalton family and Ms. McEvoy which resulted in a delay in her return to work to March 1, 2002. On March 1, Mr. Dalton wrote to Best of Care Ltd. to advise that he inteded to retain his replacement worker as his permanent caregiver. He felt that the replacement worker provided him with a higher level of care than Ms. McEvoy. In particular, he felt more comfortable with her performing the bathing, dressing, etc. duties as he had known her longer than Ms. McEvoy and he also preferred the replacement worker's cooking.
Ms. McEvoy file a complaint with the Newfoundland & Labrador human rights commission alleging that her termination was discriminatory on the basis of her sex and pregnancy. She filed her complaint against Best of Care, Mr. Dalton, and the province's Ministry of Health.
History of decisions
The Board of Inquiry sided with Ms. McEvoy and concluded that her termination was discriminatory and that the respondents had not established that her termination resulted from any good faith occupational qualifications. The province appealed that decision and the Trial Division judge concluded that the Board's finding of discrimination was unreasonable. Moreover, the judge determined that the Ministry of Health was not an employer here and as a result was not vicariously liable for any wrongful termination.
The Human Rights Commission appealed to the Court of Appeal.
The Court of Appeal's decision
In rendering its decision, the appeal court pointed out that before a determination can be made as to whether the termination of a woman's employment upon return-to-work after maternity leave is discriminatory, the entire context leading up to the termination must be taken into account:
"The failure to allow a woman who has taken maternity and parental leave to return to work at the conclusion of her leave can be discrimination on the basis of sex. But a human rights tribunal must consider all the circumstances and ask whether it is reasonable to infer that the maternity leave was a causative factor in the refusal to continue employment."
In this situation, the court concluded that the termination was not discriminatory because:
- Mr. Dalton did not decide to permanently hire the replacement worker while Ms. McEvoy was on maternity leave but when she was returning to resume her previous duties. At that time, then, Ms. McEvoy was not in a disadvantaged position due to her sex but was in a position to compete with the replacement worker for the job;
- Mr. Dalton provided credible reasons relating to the quality of care that he was receiving and unrelated to a prohibited ground of discrimination, for preferring the replacement worker over Ms. McEvoy;
- On the other hand, there was no evidence presented to base an inference that maternity leave or pregnancy factored into Mr. Dalton's request that Ms. McEvoy no longer be employed to care for him. Key here was the fact that Mr. Dalton was more familiar and more comfortable with his replacement worker in providing certain aspects of his personal care that Ms. McEvoy had never had to perform previously.
In responding to the Commission's argument that Mr. Dalton's preferences should not be determinative here, the court noted that while "customer preference" is not a defence to discrimination where the preference relates to discriminatory grounds, this does not mean that customer preference is irrelevant in examining the reasons for a refusal to employ post-maternity leave in this context. Here, the court found that the reasons Mr. Dalton gave to prefer the replacement worker over Ms. McEvoy were completely legitimate in all of the circumstances and had absolutely no connection to her sex or pregnancy.
Because the court concluded that there was no discrimination, it did not move on to consider whether the trial judge correctly decided that the Ministry of health was not Ms. McEvoy's employer.
