Initial Burden: An Employee’s High Jump with Human Rights Applications

Pregnant Woman upset due to lost wages

In order for an employee to have the opportunity to succeed with an application to the Human Rights Tribunal of Ontario, the employee must first demonstrate on a balance of probabilities that the employer’s actions were based on discriminatory grounds, either in whole or in part. Without satisfying this initial burden of proof, an employee’s application may not succeed.

As an example, consider the case of Natalia Retiounsky v. Roma Premium Meats Ltd. and Paul Leone.


The employee, Natalia Retiounsky, worked for Roma Premium Meats Ltd. as a meat packer. After a short period of employment, Roma terminated Ms. Retiounsky when she was approximately four months pregnant claiming that the reason for her termination was due to her insubordination. However, Ms. Retiounsky believed that she was terminated because she was pregnant and applied to the Human Rights Tribunal alleging discrimination by her employer.

Decision by the Human Rights Tribunal of Ontario

The Human Rights Tribunal of Ontario determined that the pertinent issues in this application were as follows: was Roma aware that Ms. Retiounsky was pregnant at the time that the decision was made to terminate her employment and, if so, was the decision based, at least in part, on the fact that Ms. Retiounsky was pregnant.

The evidence Ms. Retiounsky submitted to the Tribunal to demonstrate that Roma was aware of her pregnancy included the fact that she worked in a small workplace in which many other employees knew of her pregnancy, including two supervisors; her weight gain and wearing maternity clothing; being accommodated in her work duties due to her pregnancy; and, her boss ceasing to be friendly with her.

In response to Ms. Retiounsky’s evidence, Roma informed the Tribunal that the supervisors who were aware of Ms. Retiounsky’s pregnancy respected her request that they not inform her boss; any physical changes that Ms. Retiounsky was experiencing would not have been noticed given that the employees wore bulky clothing overtop of which a robe and apron were worn; and any change in her boss’s level of friendliness to her was probably the result of strain that he was feeling in trying to meet the increase in orders that Roma was experiencing at the time.

After hearing all of the evidence, the Tribunal determinated that “the evidence does not clearly establish that the respondents were aware [that Ms. Retiounsky] was pregnant when the decision to fire her was made”. The Tribunal stated “Thus, her certainty about [her boss’s] knowledge seems to have arisen, retrospectively, out of the fact that her employment was terminated”. Therefore, the Tribunal concluded that Ms. Retiounsky did not meet the burden she had of proving that her pregnancy was a factor in the decision to terminate her employment and dismissed her application.

Points of Interest

Many employees may view this initial burden of proof as being too high of a hurdle for an employee to surpass. However, such a high burden is in place in order to deter unfounded applications from being submitted against unsuspecting employers.

Both employees and employers should ensure that they are aware of this initial burden of proof, given that the inability to satisfy this requirement may result in the application being dismissed, as demonstrated in the case referred to above.

Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues.

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