Maternity Leave — Ontario Employment Law
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About Maternity Leave
In Ontario, what is commonly referred to as "maternity leave" is legally governed by the Employment Standards Act, 2000 (ESA) under two distinct, job-protected categories: Pregnancy Leave and Parental Leave. Welcoming a new child is a major life milestone, but it often brings anxiety regarding job security. Understanding your statutory rights is essential to ensuring your career is safe while you are away.
Under the ESA, pregnant employees have the right to take up to 17 weeks of unpaid pregnancy leave. Following this, new parents (including birth mothers, partners, and adoptive parents) can take parental leave. A birth mother who takes pregnancy leave can take up to 61 weeks of parental leave, providing up to 78 weeks of combined job-protected time off. While employers are not legally required to pay wages during this time—unless they offer a contractual "top-up"—eligible workers typically receive income replacement through the federal Employment Insurance (EI) program.
The most critical protection the ESA provides is the right to reinstatement. When your leave ends, your employer must return you to your exact position if it still exists. If that role was legitimately eliminated due to corporate restructuring, the employer must place you in a comparable position. A comparable role must have equal or greater wages and offer similar status, responsibilities, and geographic location. Furthermore, any across-the-board wage increases implemented while you were away must be applied to your pay upon your return, and your seniority and length of service continue to accrue during your absence as if you were actively working.
Ontario law strictly prohibits penalizing an employee for taking, or planning to take, this leave. Firing or demoting someone because of their pregnancy or absence is an illegal reprisal under the ESA. It is also a violation of the Ontario Human Rights Code (OHRC), which prohibits discrimination based on sex (including pregnancy) and family status. Unfortunately, some workers return to find their duties stripped away or are terminated shortly after announcing their pregnancy. Because the overlap between human rights violations and wrongful dismissal can be highly complex, seeking guidance from an employment law professional is the most effective way to evaluate your specific situation and enforce your rights.
Frequently Asked Questions
How long is maternity leave in Ontario?
Birth mothers in Ontario can take up to 17 weeks of unpaid pregnancy leave under the Employment Standards Act. They can follow this immediately with up to 61 weeks of parental leave, allowing for up to 78 uninterrupted weeks of job-protected time off.
Can my employer legally fire me while I am on maternity leave?
An employer cannot fire you because you are pregnant or took a leave of absence, as this constitutes an illegal reprisal and human rights violation. However, they can legally terminate your employment for valid business reasons entirely unrelated to your leave, such as a company-wide downsizing or business closure.
Do I keep my workplace health benefits while on pregnancy leave?
Yes. Under the ESA, you have the right to continue participating in pension, life insurance, medical, and dental plans during your leave. Your employer must continue paying their portion of the premiums, provided you continue to pay your share.
What happens if my original job no longer exists when I come back?
If your previous role was genuinely eliminated during your leave for legitimate business reasons, your employer is legally obligated to reinstate you to a comparable position. This substitute role must offer the same or greater pay and similar responsibilities without a loss of status.
When should I speak to an employment lawyer about a maternity leave dispute?
You should seek legal counsel promptly if your employer terminates you shortly after you announce your pregnancy, refuses to reinstate you, or forces you into a substantially lesser role upon your return, as you may need to file a human rights or constructive dismissal claim within specific limitation periods.
Does my time spent on maternity leave count toward my years of service?
Yes. The ESA mandates that the time you spend on pregnancy and parental leave counts toward your total length of continuous employment, which is used to calculate future entitlements such as vacation time and termination pay.
Common Scenarios
- An employee informs her manager she is pregnant; mere days later, she is terminated for vague "performance issues" despite a history of excellent reviews, pointing strongly toward an illegal reprisal.
- A worker returns from an 18-month leave to discover her department was restructured, and she is offered a position that maintains her salary but strips away all her managerial authority and direct reports.
- Upon returning to work, a new mother is informed she must switch from day shifts to a newly implemented evening schedule that makes arranging childcare impossible, leading to a dispute over the employer's duty to accommodate her family status.
What You Should Know
- Always provide your employer with written notice at least two weeks before you plan to begin your pregnancy or parental leave, keeping a copy for your own records.
- Retain copies of your current job description, salary details, and recent performance appraisals before you go on leave to clearly establish your status in case you are offered a lesser role upon return.
- Formally confirm in writing your intention to either continue or pause paying your portion of workplace benefit premiums during your absence to prevent an unexpected lapse in health or dental coverage.
- If your employer pressures you to accept a seemingly inferior job or a significant pay cut when your leave concludes, consult a legal professional before signing any new agreements to avoid unknowingly consenting to a constructive dismissal.
Featured Cases
Brandt Tractor Ltd. v M.M.
2026 ONSC 992 (CanLII) · 2026-02-23HRTO Judicial Review: Maternity Discrimination Upheld
The Divisional Court dismissed an application for judicial review of a Human Rights Tribunal of Ontario decision finding discrimination based on maternity or parental leave status. The Court upheld the Tribunal's findings that the respondent was a proper party, that lack of knowledge did not defeat the nexus to adverse impact, and that identical treatment of persons on leave could result in inequality.
P. v. Custom Granite & Marble Ltd.
2018 ONSC 3508 (CanLII) · 2018-06-05Family Status Discrimination: Maternity Leave Reinstatement
This case addresses whether an employer's requirement for an employee returning from maternity leave to start work at 8:30 a.m. constituted constructive dismissal or family status discrimination. The court applied the Potter test for constructive dismissal and the Johnstone and Misetich tests for family status discrimination, finding no substantial change to essential employment terms and no prima facie case of discrimination due to insufficient evidence of childcare needs.
P. v. Botony Dental Corporation
2015 ONCA 836 (CanLII) · 2015-12-03Wrongful Dismissal: 7-Year Employee Awarded 12 Months Notice
The Court of Appeal for Ontario dismissed the employer's appeal in a wrongful dismissal action involving an employee with over seven years of service who was demoted and terminated following maternity leave. The court upheld the trial judge's findings that there was no just cause for dismissal, affirmed a twelve-month notice period based on the Bardal factors, and confirmed a $20,000 award for discrimination under the Ontario Human Rights Code. Substantial indemnity costs were also upheld against the employer due to its conduct.
P. v. Botony Dental Corporation
2015 ONSC 343 (CanLII) · 2015-01-19Wrongful Dismissal: 12 Months Notice & Human Rights Award
This wrongful dismissal case involved a plaintiff terminated after maternity leave, where the employer alleged just cause based on misconduct and insubordination. The court found no just cause, applied the Bardal factors to award 12 months' notice, and found the employer liable for family status discrimination and breaches of the Employment Standards Act.
A. v. Bell Globe Media Publishing Inc.
2009 CanLII 3974 (ON SC) · 2009-02-04Wrongful Dismissal: Pregnancy Leave Reprisal Case
A wrongful dismissal case where the plaintiff was terminated shortly after declaring her intention to take maternity leave. The plaintiff alleges reprisal under the Employment Standards Act, 2000, and claims of fraudulent concealment and sham reorganization. The case also addresses whether the action is statute-barred under the Limitation Act, 2002, and whether discrimination can be pleaded as an independent actionable wrong.
P. v. Star Choice Television Network Inc.
2006 CanLII 34720 (ON SC) · 2006-10-17Wrongful Dismissal During Maternity Leave: 6-Month Notice Awarded
A wrongful dismissal case involving a plaintiff terminated during maternity leave as part of organizational restructuring. The court awarded six months’ notice based on Bardal factors and found no evidence of bad faith or discriminatory conduct, limiting damages to reasonable notice.
H. v. Ontario (Director of Employment Standards)
2005 CanLII 13999 (ON SCDC) · 2005-04-28H. v Ontario: ESA Maternity Leave Review
A judicial review of the Ontario Labour Relations Board's decision upholding an Employment Standards Officer's finding that an employer violated the Employment Standards Act by failing to discharge the statutory burden of proof regarding an employee's termination after maternity leave. The Board reduced damages to lost wages until the anticipated return date and rejected reinstatement, findings which the court reviewed for reasonableness. The court also addressed allegations of procedural unfairness in the investigation, finding no denial of natural justice.
Elementary Teachers' Federation of Ontario v. Toronto (District) School Board
2004 CanLII 1652 (ON SCDC) · 2004-07-06Judicial Review: Teacher Pregnancy Leave Reinstatement
This is a judicial review of an arbitration board decision regarding a teacher's reinstatement to her position following pregnancy leave. The Divisional Court applied the reasonableness standard to review the arbitrator's interpretation of the collective agreement and the Employment Standards Act, specifically addressing whether the reassignment constituted a penalty or violated reinstatement rights.
P. v. Thomas Cook Group (Canada) Ltd.
1997 CanLII 12325 (ON SC) · 1997-03-25Wrongful Dismissal During Maternity Leave: Employment Standards and Breach of Contract
A wrongful dismissal case involving an employee terminated during maternity leave. The court addressed whether the Ontario Court (General Division) has jurisdiction to enforce remedies under the Employment Standards Act, including reinstatement, and whether the employee can pursue remedies under both the Employment Standards Act and breach of contract in civil court. The employee also sought a mandatory injunction for reinstatement and damages, including aggravated and punitive damages.
O.P.S.E.U. v. Ross Memorial Hospital
1991 CanLII 8238 (ON CTGDDC) · 1991-05-23This is a judicial review proceeding brought by a union challenging a labour relations tribunal decision regarding an employee's pregnancy and maternity leave rights.
Re S. and Roos Family Shoes (Brampton) Ltd. et al.
1985 CanLII 2124 (ON SC) · 1985-11-13Pregnant Employee Termination: Employment Standards Act Protection
A merits decision involving a pregnant employee who was terminated before applying for maternity leave. The court ruled that the Employment Standards Act protects pregnant employees from termination due to pregnancy, regardless of whether they have applied for leave. The employer was found liable and the employee was awarded compensation for 17 weeks of lost wages.
Re London Life Insurance Co. and Ontario Human Rights Commission et al.
1985 CanLII 2122 (ON SC) · 1985-05-31Pregnant Employee Denied Disability Benefits: Human Rights Discrimination Case
A case involving a pregnant employee denied disability benefits under a group insurance policy during a period when she could have elected pregnancy leave. The court examined whether this denial constituted sex discrimination under the Human Rights Code and held that the policy was invalid to the extent it denied benefits to employees not on leave.