The Human Rights Tribunal of Ontario has ordered Brandt Tractor Ltd. and its predecessor company to pay over $50,000 to a former employee after finding she was discriminated against on the basis of sex (pregnancy) and family status1. The case centered on the termination of Melissa Morasse in 2019, which occurred while she was on maternity and parental leave during a large-scale corporate asset sale. Adjudicator Anthony Michael Tamburro determined that Ms. Morasse’s protected leave was a direct factor in the company’s failure to consider her for a position, leading to her termination.
Melissa Morasse had worked for Nortrax Canada Inc. for nearly five years, from November 2015 to October 2019, in the position of Product Support Technology Representative. Her role, which involved customer-facing after-sales support and training, was one she excelled at. Her direct supervisor, Raj Athwal, testified at the hearing that Ms. Morasse was very good at her job, professional, and her “right arm” due to her skills, adding that customers “loved her.” There was no evidence to suggest any issues with her performance.
In the fall of 2019, Ms. Morasse’s personal and professional life collided. She commenced her maternity leave on September 27, 2019, and gave birth to her child on October 6, 2019. At the same time, her employer was undergoing a major transformation. Brandt Tractor Ltd. had entered into an asset purchase agreement to acquire substantially all of Nortrax’s assets. This was a fast-paced transaction, initiated in early August 2019 with a firm closing date of October 31, 2019. Following the sale, Nortrax Canada Inc. continued as a legal entity but changed its name to 1714433 Ontario Inc., which was the second respondent in the case.
The asset sale closed on October 28, 2019. Three days later, on October 31, 2019, while Ms. Morasse was at home with her newborn, she received a termination letter from Nortrax. The letter stated that her employment was ceasing effective immediately. The reason given was explicit: “We understand that Brandt does not have a position available for you in its business, and that you have not received an offer of employment from Brandt.” While many of her co-workers transitioned to the new company, Ms. Morasse was left without a job. This prompted her to file a human rights application on June 15, 2020.
The respondents, Brandt and the numbered company, denied any discrimination. They argued the decision was based on non-discriminatory business considerations. Their defence rested on several points: that Brandt was never Ms. Morasse’s employer; that Brandt was a successor organization and the Human Rights Code does not contain successor rights, meaning it was not liable for Nortrax’s actions; and that her specific role was eliminated and replaced by a different one. They also noted that other employees who were not on leave were also not hired.
The Tribunal, however, rejected these arguments. Adjudicator Tamburro found that this situation was different from previous cases involving successor employers. In those cases, the new owner was a “complete stranger” to the discrimination, which had already occurred. Here, the evidence showed Brandt was directly involved in the decision-making process that led to Ms. Morasse’s termination. Brandt’s Chief Operating Officer, Don Switzer, testified about the rapid acquisition of 650 employees and 29 locations. He described a “heavily co-operative process” where Brandt consulted with Nortrax managers and reviewed HR files to decide who to hire. Mr. Switzer agreed that when Brandt decided not to hire someone, it was Nortrax’s job to inform them. The termination letter itself confirmed that she was fired because Brandt had no position for her. The Tribunal concluded both companies were properly parties to the application.
The Tribunal then dismantled the “business reason” defence. The respondents had suggested Ms. Morasse’s role was redundant. However, under cross-examination, Mr. Switzer provided a different explanation. When asked why Ms. Morasse was not considered qualified for a new role, he stated, “I don’t know that this was the issue. It wasn’t that she was or wasn’t qualified. It was that we didn’t have a chance to interview her.” Mr. Switzer explained that during the rapid acquisition, a list was generated of employees “not at work for various reasons,” and because of the short timeline, “obviously, we couldn’t meet with them.”
This admission was the crux of the Tribunal’s finding. The Adjudicator established a clear factual chain: Ms. Morasse was on maternity and parental leave. Because she was on leave, she was not “immediately available” for an interview. Because she was not interviewed, she was not offered a position by Brandt. Because Brandt did not offer her a position, Nortrax terminated her employment. The Tribunal found that “the fact that the applicant was away on maternity/parental leave was a factor in both Brandt’s decision not to hire her and the termination of her employment by Nortrax.” The decision affirmed that a protected ground only needs to be a factor, not the sole or primary factor, to establish discrimination.
The Adjudicator noted there was “not one iota of evidence” that the respondents intended to discriminate. However, intent is not required for a finding of discrimination. The decision also emphasized that employers have a duty to employees on protected leaves, stating that being on maternity leave “does not disentitle a person from being consulted about changes in the workplace, particularly those which may have a direct effect on [her].”
The case also involved two other allegations from Ms. Morasse, both of which the Tribunal dismissed as untimely. The first related to events in 2020, when Ms. Morasse applied for a new job at Brandt, was offered a lesser position, and then had that offer rescinded. Ms. Morasse alleged this was a reprisal for her human rights complaint. The second alleged that during the 2020 interview, managers asked how she would “balance her family responsibilities.”
The Tribunal found it had no jurisdiction over these claims because they were filed too late. The Code has a one-year time limit for filing. The 2020 job offer was rescinded in October 2020, but the allegation was not raised until March 2022. The interview-related allegations were not raised until November 2023. Ms. Morasse’s counsel argued the delay was in good faith due to the Tribunal’s own pandemic-related backlogs. The Tribunal disagreed, stating the applicant did not act with “all due diligence.” The Adjudicator explained she should have filed a new application or a request to amend her existing one within the one-year window, rather than waiting for the reply stage.
Having found discrimination in the 2019 termination, the Tribunal ordered remedies. For lost wages, it awarded Ms. Morasse compensation for the 26-week period following her planned return-to-work date, which amounted to $35,855.04 including vacation pay. The Tribunal found she had taken reasonable steps to mitigate her losses by applying for 39 jobs and eventually finding work as a teacher. Her mitigation earnings of $5,637.77 were deducted, leaving a final award of $30,217.27 for lost wages.
The Tribunal also awarded $20,000 in general damages for injury to her dignity, feelings, and self-respect. Ms. Morasse testified the experience was “super defeating” and left her “scared of what the future holds.” She stated her maternity leave was disrupted, and she felt “extra weight to find work” during a time she was supposed to feel protected. The Tribunal weighed the aggravating factors, such as her long-term employment and her vulnerability as a new mother, against the mitigating factor that the discrimination was not intentional, and found $20,000 to be an appropriate award.
In addition to the total financial award of $50,217.27 plus interest, the Tribunal ordered a public interest remedy. To promote future compliance with the Code, the Adjudicator ordered all persons employed in Brandt Tractor Ltd.’s human resources department to complete the Ontario Human Rights Commission’s “Human Rights 101” e-learning module within six months.
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