June 29, 2015
In a decision of the Human Rights Tribunal of Ontario (“HRTO”) released May 22, 2015, an applicant was awarded $150,000 in general damages against her former employer and its principal. The co-applicant was awarded $50,000. The decision represents a new high-watermark for damage awards.
The HRTO found that owing to the fact that the actions of the respondent were those of the directing mind of the company, it was sufficient to form the basis for imposing equal liability on the corporate respondent (this has been the law for some time but bears mention as a reminder).
The facts giving rise to the application were, with particular reference to the first applicant, gravely troubling and far from “typical”. The applicants are sisters who were in Ontario on temporary foreign worker permits from Mexico, brought in to work for the respondent, a fish processing plant. The applicants were subjected to unwanted sexual solicitations and advances by the principal. As well as, in the case of the first applicant, sexual assault (including both rape and various incidents of touching), a poisoned work environment, discrimination in respect of employment because of sex and reprisals for turning down sexual advances. The applicants were threatened that if they did not comply with the principal’s advances they would be sent back to Mexico.
The first applicant gave evidence that she felt compelled to do what she was asked. She, at first, attempted to reject the respondent’s solicitations and advances but felt she was under constant threat. She as a result had been subjected to a greater amount of offensive conduct including repeated sexual assault. The second applicant had been more successful in her attempts to rebuff the advances of the respondent and had escaped the same level of assault.
The HRTO went on to review the case law and stated that owing to the seriousness of the conduct found to have occurred, which had not been seen in the prior case law, an unprecedented damage award was justified. The HRTO especially considered the fact of the particular vulnerability of the migrant workers, the threats of repatriating them to their home country, thereby causing significant loss of economic and financial advantage, the observed impact on the applicants, and the repeated and serious nature of the sexual assaults.
$150,000 in general damages was awarded to the first applicant. The second applicant received $50,000, which was noted to be above what was typically awarded for the type of conduct at issue (past awards stated to be in the range of $35,000-$45,000).
This decision stands as a stern statement that sexual harassment, discrimination and creation of a poisoned work environment will not be tolerated. Still, one question, is it high enough given what was found to have happened here . . .
O.P.T. v. Presteve Foods Ltd. 2015 HRTO 675