There are often two possible administrative remedies for pregnancy related issues. Ontario's Employment Standards Act, like many provincial and territorial minimum standards statutes, allows for a reinstatement remedy where the employer has failed to reinstate the employee following a pregnancy leave to the same or comparable position.

In this context, the Employment Standards Officer may order compensation for lost wages and/or reinstate. This award may also include compensation for the reasonable expectation of continued employment and emotional damages. ¹

The remedy is similar to that offered under the Human Rights Code, although not identical. It is generally considered unfair for the employer to be exposed to two forms of such similar relief contemporaneously. One will be postponed to the other. ²

The issue may arise as to whether the human rights tribunal may hear a case following a review of an ESO decision dealing with the alleged failure of the employer to reinstate following a pregnancy leave and/or an alleged reprisal relating to this issue.

The essential question becomes whether the ESA proceeding decided the same issue as was subsequently  presented by the human rights complaint. This issue was considered buy the human rights tribunal in 2022. ³

The human rights case alleged unfair treatment due to gender and family status. It was alleged that she had been unable to find adequate childcare and further that she had been treated differently from a male colleague in a similar circumstance. She had also testified that she had attempted to raise these issues in the ESA proceeding but was advised that this was not allowed under the ESA review. The issues considered by the ESO were whether she was treated unfairly due to her request for an extension of parental leave and whether there was resulting reprisal. No human rights issues were addressed. The tribunal found that there was different issues in debate in the human rights proceeding and allowed the case to proceed.