Executive Summary: Key Legal and Evidentiary Issues

• Whether Brandt’s non-hire of an employee who was on maternity leave in the context of a business purchase amounted to discrimination based on sex (pregnancy) and family status.
• The appropriateness of the Human Rights Tribunal of Ontario’s remedial award for lost wages and injury to dignity, feelings, and self-respect in favour of the complainant.
• Application of the RJR-MacDonald three-part test to a motion to stay enforcement of a human rights monetary award pending judicial review.
• Sufficiency of Brandt’s evidence of alleged irreparable harm, particularly its speculative proof of the complainant’s ability to repay the award.
• The weight accorded to a judgment creditor’s entitlement to the fruits of litigation when a corporate debtor seeks to delay payment of a human rights award.
• How the balance of convenience and overall interests of justice operate where a human rights claimant seeks timely enforcement and the employer seeks a stay.

Factual background

Nortrax Canada Inc. operated a heavy-equipment business that it agreed to sell to Brandt Tractor Ltd. in August 2019 on the condition that the sale close by October 31, 2019. In preparation for closing, Brandt visited 29 Nortrax locations to determine which employees it would hire into the ongoing business after the transaction. Nortrax did not arrange interviews for employees who were unable to attend, and Brandt was not made aware that one such employee, Melissa Morasse, was on maternity leave at the time. On October 31, 2019, Nortrax advised Ms. Morasse that the business had been sold and that her employment was being terminated, without cause, because of the sale to Brandt. She was not offered a position with Brandt following the acquisition.

Human rights findings and remedies

Ms. Morasse brought a human rights application alleging discrimination in employment. The Human Rights Tribunal of Ontario (HRTO) found that Brandt discriminated against her when her employment ended and she was not taken on by the purchaser, on the prohibited grounds of sex (pregnancy) and family status. The Tribunal concluded that her maternity/parental leave status was connected to her exclusion from consideration for continued employment and therefore constituted discriminatory treatment in the course of the business transfer. As a result, the HRTO ordered Brandt to pay monetary compensation to Ms. Morasse, including an amount for lost wages and a further sum for injury to dignity, feelings, and self-respect, together with pre-judgment interest from a specified date and post-judgment interest in the event of non-payment within a set time. These orders formed the basis of the award that Brandt later sought to stay before the Divisional Court.

Judicial review application and motion to stay

On July 3, 2025, Brandt commenced an application for judicial review challenging the HRTO’s decision. Among other things, Brandt contended that the Tribunal had failed to apply, or had misapplied, the governing law in concluding that Ms. Morasse’s parental leave was a factor in Brandt’s decision not to hire her. The judicial review was scheduled to be heard on February 10, 2026. Pending the outcome of that application, Brandt brought a motion in the Divisional Court to stay enforcement of the HRTO’s award. Brandt argued that if it were required to pay the award before its judicial review was decided, there was a real risk it would never recover the funds from Ms. Morasse should it ultimately succeed, because of her allegedly limited financial means. Ms. Morasse opposed the motion, maintaining that she was presumptively entitled to the fruits of the HRTO’s judgment and that Brandt had not produced adequate evidence to justify delaying payment.

Legal framework for a stay pending judicial review

The Divisional Court applied the three-part test for a stay pending appeal or judicial review, as articulated in RJR-MacDonald Inc. v. Canada (Attorney General) and recently summarized in Miner-Tremblay v. Rintoul. The court assessed: whether there was a serious issue to be determined; whether Brandt would suffer irreparable harm if the stay were refused; and whether the balance of convenience favoured granting the stay, all under the overarching consideration of the interests of justice. Ms. Morasse conceded that there was a serious question to be determined on the judicial review, so the analysis turned on irreparable harm and the balance of convenience. The court emphasized that irreparable harm is defined by the nature, not the magnitude, of the harm, and refers to harm that cannot be adequately compensated in damages or effectively reversed, often because the paying party cannot later collect from the recipient. A judgment creditor is presumptively entitled to enforce its judgment, and the burden rests on the moving party to establish, on clear evidence that goes beyond speculation, that paying now would result in irreparable harm.

Assessment of evidence and balance of convenience

To support its claim of irreparable harm, Brandt relied on two main pieces of evidence about Ms. Morasse’s financial situation: her LinkedIn profile, which continued to list Nortrax as her last employer, and Canada Revenue Agency Notices of Assessment from several years (2018–2021) showing her reported gross and net incomes. Brandt invited the court to infer from this material that she was likely unemployed or of limited means and therefore may not be able to repay the HRTO award. The court found this evidence to be “very weak” and fundamentally speculative. A LinkedIn profile can be outdated and is not reliable proof of current unemployment or financial vulnerability, and income information from four or more years earlier does not establish a person’s present income, assets, or net worth. Because Brandt failed to provide current, concrete evidence raising a real concern about her ability to repay, there was no basis to shift any evidentiary burden to Ms. Morasse to demonstrate her financial stability. The court also distinguished authorities involving very large judgments that could significantly disrupt a business if paid, noting that there was no suggestion that compliance with the HRTO award in this case would jeopardize Brandt’s operations. Turning to the balance of convenience, the court held that granting a stay would deprive Ms. Morasse of the timely benefit of the Tribunal’s award, while refusing a stay would merely require Brandt to pay a sum it had not shown it would be unable to recover in the event of ultimate success on judicial review. In these circumstances, the balance of convenience and the broader interests of justice favoured allowing enforcement to proceed.

Outcome and monetary order by the Divisional Court

The Divisional Court dismissed Brandt’s motion to stay enforcement of the HRTO award, leaving the Tribunal’s remedial order in place pending the judicial review. Consistent with the parties’ agreement, the court ordered costs in the cause in the amount of $5,000. In effect, Ms. Morasse was the successful party on the motion, and the only amount awarded by the Divisional Court itself was $5,000 in costs, with ultimate responsibility for that sum to depend on the final outcome of the judicial review.