Giguère v. Popeye Restaurant

The applicant alleged that her employment was terminated by her employer on the basis that her common-law spouse was HIV positive.

Decision | 01 January 2008

Facts

The applicant was in a common-law relationship with an individual who was HIV-positive. She was HIV-negative. In April 2004, the applicant was employed as a waitress in the respondent’s restaurant. The applicant had previously informed her employer of her spouse’s HIV status. The employer had not raised any concerns at the time. Two weeks later, the employer informed the applicant that she was terminating her employment. In the letter of termination which the applicant received, it is stated that customers had complained that she might have contracted HIV and threatened to stop coming to the restaurant. The applicant claims that her employment was terminated because of those complaints. Her employer claims that the complaints played no role in her decision to terminate the applicant’s employment and that such termination was due to financial difficulties.

Decision and Reasoning

The Court held that, even though the restaurant was facing apparent financial difficulties, the termination of the applicant’s employment was unlawful and discriminatory on the basis of her association with an HIV-positive person. The Court found that “it is not necessary that the sole or even primary reason for the action [to termination one’s employment] be discriminatory. Even if there are legitimate reasons for terminating an employee, if one of the factors or considerations was discriminatory, then the termination will be held to be a violation of the [Ontario Human Rights] Code”.

In the circumstances, the Court also found that the financial difficulties of the restaurant were not recent and that there was no evidence that the restaurant had lost any customers since the applicant was employed. The Court further noticed that no other employee had been dismissed.