The Ontario Human Rights Code was amended in 2008 to include s. 46.1 allowing courts to award damages for violations of the Code in wrongful dismissal cases. However, to date, only a handful of decisions have included such awards – Strudwick being the first, awarding s. 46.1 damages at the Ontario Court of Appeal.
With the recent award in G.M. v. X Tattoo Parlour, 2018 HRTO 201, released February 26, 2018, in which a womping $75,000.00 was paid to a 15-year-old sexual harassment survivor, a trend of rising damage awards for human rights violations begins to become evident. The question, as always, remains: should I bring my case before the Tribunal, or the Courts?
Below, I've compiled a list of court vs. tribunal decisions spanning 2013-2018. One thing is evident for sure: human rights damage awards are now more prominent than ever.
Court Decisions
Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799 (September 12, 2013):
Facts: The employee, in her early 50's and a certified general accountant ("CGA"), worked as assistant controller and thereafter business analyst for the employer. Slightly over one year into the employment relationship, the plaintiff stopped coming to work due to a back ailment. The plaintiff's physician advised the employer that the employee was medically fit to resume work on a graduated basis. This proposal was unacceptable to the defendant company, who demanded the plaintiff be capable of returning to work full-time before making the transition. Following the sale of a branch of the corporation, the employer advised the plaintiff that many of her functions had become redundant, and that they were terminating her immediately.
Breakdown of Damages Award: The only direct evidence before the Court regarding loss of dignity and feelings of self-worth was the deposition of the plaintiff, where she stated she was "shocked, dismayed, and angered" by the pre-termination letter of the employer, rejecting her proposal for a graduated return to work. In awarding damages, Justice Grace considered two factors: first, the fact that the plaintiff had lost the right to be free from discrimination and experienced victimization, and second, that the defendant's breach of the Code was serious, and their conduct disingenuous. In these circumstances, an award of $20,000 under section 46.1(1) of the Human Rights Code was appropriate.
Partridge v. Botony Dental Corporation, 2015 ONCA 836 (December 3, 2015):
Facts: Ms. Partridge, aged 36, worked for the employer for seven years initially as a hygienist, and thereafter as a dental practice office manager. Following her return from maternity leave, the employer demoted her to her initial hygienist position with reduced hours and pay. Ms. Partridge objected to the material changes in her employment, and reminded her employer of its obligations under section 53(1) of the Employment Standards Act, 2000, to return the employee to her former position. Although the office manager position was still available, the employer did not return Ms. Partridge to the position. Instead, the employer deliberately increased her work hours, creating a conflict with her children's day care pick up schedule. Ms. Partridge's employment was then terminated for cause within a week of her return following her maternity leave. The alleged cause for termination was that Ms. Partridge removed patient day sheets from the employer's premises in breach of her employment obligations. Accordingly, shewas dismissed immediately without notice or pay in lieu of notice.
Breakdown of Damages Award: The trial judge allowed Ms. Partridge's claim for wrongful dismissal. Justice Healey of the Ontario Superior Court concluded that the employer did not have cause and awarded Ms. Partridge a twelve-month notice period. In addition, she concluded the employer discriminated against Ms. Partridge on the basis of family grounds, and awarded her $20,000 in damages. Ms. Partridge was also awarded costs on a substantial indemnity basis.
With respect to the trial judge's finding of discrimination, the Court was satisfied that the employer's willful misconduct and its effects on Ms. Partridge were well-grounded in the evidence that the trial judge was entitled to accept. The Court also accepted the trial judge's conclusion that the employer's refusals to reinstate Ms. Partridge to the position of office manager following her maternity leave as well as the employer's reprisals in the form of creating an inflexible working schedule amounted toe discriminatory treatment based on family status, including, but not limited to, her childcare obligations. In addition, the Court noted that the trial judge was entitled to accept Ms. Partridge's uncontested evidence that she had made a very complex arrangement with relatives and others whom she had asked to pick-up her children from daycare, despite the fact that such arrangements were not sustainable.
Accordingly, the Court concluded that the employer's improper actions caused injury to Ms. Partridge's dignity, feelings, and self-respect. They also materially affected her family's economic security because of her family's financial dependence on her salary.
Bray v. Canadian College of Massage and Hydrotherapy, 2015 CarswellOnt 1232 (January 31, 2015):
Facts: The plaintiff went on maternity leave for a year following 9 years as a massage therapy instructor. When she returned to work, she received fewer hours and diminished responsibilities in a less senior position. Accordingly, she filed a complaint with the Ministry of Labour. Three months later, shortly after receiving the complaint, her employer advised her that they would not be able to schedule her at all for the upcoming term. The plaintiff alleged she was constructively dismissed as a result of the complaint she filed and that this amounted to discrimination against her as a new mother, i.e. on the basis of family status.
Breakdown of Damages Award: The Court accepted that the employer's actions amounted to constructive dismissal. The court also accepted, based on an email from the employer referencing how hard it would be to balance her responsibilities as a new mother, that the plaintiff's sex and family status were factors in her adverse treatment. In awarding damages, the court cited both Wilson and Partridge. The Court concluded that these cases were similar on the facts as they also involved discrimination committed by an employer in conjunction with a wrongful dismissal complaint, and fixed compensatory damages at $20,000 pursuant to s. 46.1(1) of the Human Rights Code.
Silvera v. Olympia Jewellery Corporation and Bazik, 2015 ONSC 3760 (June 16, 2015):
Facts: A retail store employee was repeatedly sexually assaulted and harassed by her supervisor, only to have her employment wrongfully terminated when she was absent due to complications from dental surgery. Throughout the course of her employment, the Plaintiff's boss frequently made inappropriate and derogatory racial comments toward her, touching her, calling her into work after-hours and asking her to model, and on a number of occasions, sexually assaulted her.
Breakdown of Damages Award: The Court ordered damages at $90,344.63 for wrongful termination, aggravated damages at $15,000, punitive damages at $10,000, and $57,869.13 for lost income. Also ruling that the plaintiff was subjected to sexual and racial harassment and sexual assault by her manager, the Court found that the employer and manager jointly and severally liable, awarding $90,000 for general and aggravated damages; $10,000 for punitive damages; $30,000 for breach of the Human Rights Code; $42,750 for costs of future therapy care; and $33,924.75 for future loss of income.
With respect to the breach of the Code, Justice Glustein found that the manager was liable for breach of the plaintiff's right to equal treatment in respect of employment without discrimination because of race or sex under s.5(1) of the Code, and her right to freedom from harassment in the workplace by the employer or the agent of the employer, because of race or sex under ss.5(2) and 7(2) of the Code.
With respect to damages under s.46.1, Justice Glustein relied on the principles set out in the decision of ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 in which the Ontario Divisional Court emphasized the need to ensure damages are not set too low. The following considerations are to be made: "humiliation; hurt feelings; the loss of self-respect; dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant; and the seriousness of the offensive treatment." Noting that the plaintiff had suffered "the full list of consequences to be considered," Justice Glustein awarded $30,000 in damages under the Code.
Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520 (June 30, 2016):
Facts: The plaintiff was employed by the defendant company as a data entry clerk, and later recruiter. She lost her hearing after 14 years of employment, for undetermined medical reasons. Almost immediately after the plaintiff became deaf, her direct supervisors commenced a campaign of harassment and abuse against her, including communicating with her in a way that she would not understand and later verbally abusing her for not understanding; chastising her for not answering the phone; demanding a doctor's note identifying the exact cause of deafness, and later calling her "too cheap" when she produced hearing tests instead; and suggesting that she "just quit" and "go on disability". In addition, her supervisors advised others not to speak with her, and instructed them to torment her. Finally, all of the plaintiff's requests for accommodation were denied as "unnecessary".
Approximately one year and 8 months after her deafness occurred, the plaintiff's supervisor humiliated her in front of 13 employees, and proceeded to fire her in front of his colleague and another employee for wilful misconduct and insubordination, referring to a "stunt" that occurred the night before. She did not receive outstanding pay until the Labour Community Service of Peel Region intervened on her behalf. The employer also interfered with her ability to collect E.I.
Following her dismissal, the Plaintiff was diagnosed with an adjustment disorder with mixed anxiety and depression, as a result of her treatment at work. The Plaintiff sought damages for wrongful dismissal at $240,000, restitution under s. 46.1 of the Human Rights Code, general damages for breach of good faith, punitive damages, exemplary damages, and an unspecified amount for loss of benefits during the notice period.
Breakdown of Damages Award: Justice Grant Dow awarded damages for wrongful dismissal in the amount of $113,782.79, including prejudgment interest, plus $40,000 in costs. In addition, considering the employer's "unconscionable conduct" and "abject failure to consider or accommodate the plaintiff despite repeated, reasonable and varied requests", he awarded $20,000 in damages under section 46.1 of the Code. The plaintiff appealed, seeking $1,019,384.80, and the employer cross-appealed the costs award. The plaintiff argued that $20,000 was "too low" for damages under the Code, considering her particular vulnerability and the egregiousness of the mistreatment. She also contended that the judge had erred in basing his award of damages for mental distress solely on the cost of her treatment rather than compensation for the injury itself. She claimed damages of $150,000, as well as $200,000 in aggravated and $150,000 in punitive damages. The employer maintained the aggregate amount of the plaintiff's claim could not exceed the amount set out in her statement of claim of $240,000, plus compensation for loss of benefits.
The Ontario Court of Appeal allowed the appeal, ruling that the motion judge had erred in his assessment under several heads of damages, and increased the plaintiff's award to $246,049.92. First, the Court found that the plaintiff should have been allowed to amend her claim. Second, an appellate court could review a damages award as held in Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58. The Court ultimately found that the judge had strayed "so far from well-established principles of damages for wrongful dismissal, notably, by failing to recognize and compensate for the particular egregious nature of the harassment suffered by a vulnerable employee over a significant period of time, forcing her out of her job." The Court emphasized that damages under s. 46.1 of the Code are designed to "remedy the effects of discrimination" and identified two flaws in the motion judge's analysis. First, the judge failed to consider the impact of discrimination on the plaintiff, including her "immediate feelings of isolation, anxiety, stigmatization, and humiliation", as well as subsequent diagnoses of depression, anxiety, and an adjustment disorder; her vulnerability; and her inability to object to the offensive conduct for fear of losing her job. Second, although acknowledging that the motion's judge considered the employer's "abject failure" to accommodate the plaintiff, the Court considered the judge to have erred by "not taking into account an important exacerbating factor – that the company's victimization of the plaintiff went beyond failing to accommodate her hearing loss; much of it was actually designed to increase the difficulties she was experiencing at work." Opining that the Court was "obliged to interfere" as a result of these two errors, Justice Epstein held that $40,000 was a more appropriate award. In her view, the effect of the employer's victimization was profound, and prolonged. The evidence demonstrated she suffered stringent emotional and physical difficulties as a result of the employer's abusive treatment of her. Her circumstances as a widow who had acquired a serious disability late in life and who had no other source of income, made the effects of the discrimination particularly severe. Moreover, the employer had refused every one of the plaintiff's requests for accommodation, even those she offered to pay for herself. It then took steps to exacerbate the impact of her deafness on her ability to perform to force her to resign. When that did not work, it fired her for a "frivolous and particularly offensive reason and in a manner intended to cause maximum embarrassment." Epstein also took issue with the motion judge's quantification of damages for the tort of intentional infliction of mental distress. She found the plaintiff was entitled to an additional $11,310 in damages for cost of an interpreter while undergoing therapy. Also, the motion judge had erred in declining to award aggravated damages, though there was some overlap between the damages awarded. In any event, Justice Epstein awarded $70,000 in aggravated damages. Finally, she considered $55,000 to be a more appropriate amount for punitive damages.
Justice Epstein opined that the employer was jointly and severally liable for tort, and vicariously liable for discrimination under the Code, by failing to deal with the harassment and creating a poisoned work environment. She also saw no reason to vary the costs award, and dismissed the employer's cross-appeal.
Epstein therefore allowed the appeal, arriving at a damages total of $247,850.79. After taking into account the $240,000 limit on aggregate damages imposed by the initial statement of claim, and adjustments related to loss of benefits, a final total of $246,049.92 was awarded.
This is the first case where damages for human rights violations had been ordered by the Court of Appeal. In deciding to double the amount of damages under s. 46.1 to $40,000, the appellate court relied in part on Arunachalam v. Best Buy Canada, 2010 HRTO 1880, in which the Ontario Human Rights Tribunal set out two primary criteria for evaluating such damages: the objective seriousness of the conduct, and the effects on the applicant who has experienced discrimination. Ruling that the lower court judge failed to adequately consider the impact of discrimination on a particularly vulnerable employee, and that the failure to accommodate was intended to force her to leave her job, the Court of Appeal considered $20,000 inadequate. In its discussion, the appellate court referred to the decision Silvera v. Olympia Jewellery Corp., 2015 ONSC 3760. In its closing remarks, the indicated that it would have awarded higher amounts had it not been limited to the $240,000 set out in the original statement of claim.
Doyle v. Zochem Inc., 2017 ONCA 130 (February 15, 2017):
Facts: Doyle worked for the defendant Zochem for nine years as the company's plant supervisor. She was the only woman who worked at the company, and was sexually harassed by another employee, Rogers, the plant maintenance manager. At a July 14, 2011 meeting, she raised legitimate safety concerns relating to operational logistics at the plant. In response, she was mocked by Rogers and another co-worker who, at the time, were aware that Doyle was going to be terminated in the near future. Doyle complained to the General Manger, Wrench, that she had been sexually harassed by Rogers.
On July 19, 2011, Doyle was terminated without cause. Among other things, Zochem was found to have taken Doyle's keys from her purse without permission, in order to bring her car around to the front of the building at the time of her termination, pressured Doyle into signing a release upon termination, pressured Doyle not to pursue her claim of sexual harassment to protect Rogers' reputation, misrepresented to Doyle that her job was safe although the decision to terminate her employment had already been, and recruited other employees to 'dig up dirt' on Doyle to discredit her in an attempt to justify termination.
Breakdown of Damages Award
Trial Decision:
In addition to notice of her termination, the trial judge awarded Doyle $25,000 in damages for violations of the Code, finding that the plaintiff's gender and her sexual harassment complaint were likely the most significant reasons for why she was terminated.
Furthermore, the Court awarded $60,000 in moral damages as a result of the manner in which Zochem dismissed Doyle.
Decision on Appeal:
The employer appealed the trial judge's decision on the basis that the facts that gave rise to the human rights damages also gave rise to the award of moral damages, and thus the employee was compensated twice for the same wrong. Specifically, the issues on the appeal were as follows:
- Should the award of $60,000 for moral damages be reduced?
- Was the trial judge's decision to consider both pre and post termination in its award of moral damages conduct appropriate?
The Court of Appeal did not reduce the moral damages awarded by the trial judge due to the employer's "double recovery" argument. While there was some overlap in the conduct the Court relied on to award both human rights damages and moral damages, there were many instances of misconduct by Zochem which grounded the award of moral damages but did not ground the award of human rights damages. In addition, the Court held that the $60,000 for moral damages was in line with previous case law. With respect to the consideration of pre and post termination conduct, the Court of Appeal held that it is reasonable to consider both in the assessment of whether moral damages are warranted.
Ellis v. Artsmarketing Services Inc., 2017 CanLII 51563 (March 16, 2017):
Facts: The plaintiff, Lynette Ellis, was employed by the defendant company for over nine years as a telemarketer. For the large majority of her employment, the plaintiff worked on Mirvish Productions campaigns, selling tickets to their numerous productions. She even won prizes for her top sales performances. Generally, telemarketers would sign an employment contract with the defendant company to work on a given campaign. The plaintiff had signed one of these employment contracts which commenced in February 2016.
Ms. Ellis was terminated from the Mirvish campaign on April 1, 2016; approximately two months after the commencement of the campaign allegedly for her poor sales performance. There was debate as to whether Ms. Ellis had resigned from the company after being removed from the campaign, or whether she had been essentially fired. The judge found that she had been fired.
With respect to her Record of Employment, the plaintiff asked for it as soon as she was dismissed. However, the defendant seemed to delay providing it, based on its position that the plaintiff had not been terminated.
Breakdown of Damages Award: Deputy Judge Prattas of the Ontario Small Claims Court noted that regardless of the failure to agree on whether Ms. Ellis had been terminated or had quit, an employer is required to provide a ROE directly to Service Canada within seven (7) days of an interruption of earnings. Deputy Judge Prattas went on to say the following:
[56] Even if the defendant felt that it had not terminated the plaintiff from the company on April 1, 2016, it certainly knew by June 2016, when it was served with the Plaintiff's Claim, which had been commenced on May 31, 2016. Yet despite this the defendant did not issue a ROE until August 12, 2016 and when it did issue it the defendant declared that the reason of termination was that the plaintiff had "quit".
[57] If the plaintiff had "quit" as alleged by the defendant, then, why didn't the defendant issue the ROE much earlier than August?
[58] This intentional act of the employer in inordinately delaying issuing the ROE and the declaration of "quit" resulted in the plaintiff being denied employment benefits, which in turn resulted in financial hardship of the plaintiff who had to borrow money from others, including family members, to meet her needs.
[59] It is trite to repeat that an employer must promptly submit the ROE whenever there is an interruption in earnings. This was acknowledged by [the company's Director of Human Resources] in his testimony. It is obvious that the dithering by the defendant for about five months before submitting the ROE is inexcusable and caused the plaintiff stress and inconvenience for no good reason.
[60] Jurisprudence has allowed the recovery of inconvenience damages under a variety of circumstances. See the following cases: Jarvis v. Swans Tours Ltd. [1973] 1 All ER 71; Fuller v. Healey Transportation Ltd. (1978), 1978 CanLII 1693 (ON SC), 22 O.R. (2d) 118; Tanglewood (Sierra Homes) Inc. v. Bell [2010] O.J. No. 2344; Foghi v. MCI Travel Ltd., [2013] O.J. No. 1759; Karampatos v Torabipoor, [2004] O.J. No. 4255;
[61] Taking into consideration what the plaintiff went through as a result of the defendant's deliberate act of not promptly submitting the ROE and the initial rejection of the plaintiff's application for employment benefits, I think that the sum of $1,000 is an appropriate, fair and proper amount under these circumstances for inconvenience damages to be paid by the defendant to the plaintiff.
The judge denied the plaintiff's claims for aggravated and punitive damages. Based on an annual salary of $13,712.40, the amount for reasonable notice damages for nine months in favour of the plaintiff was calculated to be $10,284.30.
Tribunal Decisions
University of British Columbia v. Kelly, 2016 BCCA 271 (June 24, 2016):
Facts: The respondent was a resident in family medicine at the University of British Columbia. He suffered from ADHD. The University attempted to accommodate the respondent to resolve his difficulties but finally dismissed him from the program, on the basis of unsuitability. The Tribunal found that the respondent's disorder was the sole or predominant factor in his dismissal, and constituted prima facie discrimination. The University had not discharged their duty to accommodate, up to the point of undue hardship. The Tribunal ordered substantial compensation for lost wages, and damages for injury to dignity. The trial judge found that the Tribunal's award with respect to lost wages was reasonable, but set aside the award for damages as it was more than double the previous high water mark for such an award.
Breakdown of Damages Award: The British Columbia Court of Appeal restored the Tribunal's award of $75,000 in general damages, for loss of dignity and self-respect. The Court did not believe that it was patently unreasonable for the Tribunal to exceed the range of previous awards for damages, so long as the award was based on the facts. There was ample support in the factual record supporting the deleterious subjective effect the conduct of the University had on the applicant. In the circumstances, a high award was reasonable.
Turning first to the analysis for prima facie discrimination, Justice Donald, writing for the court, endorsed the Tribunal's ruling that modifications should be considered only in the bona fide occupational requirement stage and were not relevant to the prima facie analysis, supported by a consideration of the scheme of the Code. Justice Donald also endorsed as reasonable the Tribunal's finding of a nexus between the plaintiff's disability and his adverse treatment. However, he did take issue with the lower Court's decision that the injury to dignity award was patently unreasonable, emphasizing that "ranges established by previous cases play a more diminished role in the Tribunal's determination of an award for injury to dignity." Ruling that the Tribunal's award was rational, and based on the evidence, CK suffered emotional hardship (e.g. depression, dejection, disturbance with personal relationships, embarrassment and despair), it was appropriate for the Tribunal to weigh in.
The Tribunal held that, with respect to injury to dignity, there was no legislative cap on the amount that may be awarded under this head of damages. An award for $75,000 was "reasonably proportionate." Stating that the "gravity of the effects of the discrimination in this award warrants a substantial award for damages..." because of the respondent's opportunity to complete his medical residency program, to apply for licensing, and to practice in the career of his choosing for which he had spent considerable time and resources, he was significantly delayed and was in a vulnerable position both as a student and resident who suffered from a mental disability.
(O.P.) v. Presteve Foods Ltd., 2015 HRTO 675 (May 22, 2015):
Facts: The complainants were two temporary foreign workers from Mexico working at a fish processing plant. The workers alleged that the employer subjected them to unwanted sexual solicitations and advances, sexual assaults and touching, a sexually poisoned work environment, and reprisal. The adjudicator described in detail a horrifying and persistent pattern of unwanted sexual solicitations and sexual touching in and outside of the workplace. There were pending criminal proceedings in relation to some of the complainants' allegations.
Breakdown of Damages Award: Given the truly outrageous nature of the conduct, the adjudicator granted an award of $50,000 as compensation for injury to dignity, feelings and self-respect for one complainant, and $150,000 for the other. Having found that the incidents alleged by both complainants occurred, Vice-Chair Hart held that the employer, as owner and principal of the company in a position to confer, grant, or deny a benefit, subjected the complainants to "a persistent and ongoing pattern of sexual solicitation and advances", and threatened retaliation if refused, contrary to ss. 7(2) and 7(3)(a) of the Code. Moreover, these sexual solicitations, advances, and harassment created a poisoned work environment, contrary to s.5(1) of the Code. Noting that the advances took place in the employer's office and therefore the workplace, Hart held that the incidents that took place outside of the workplace (in the car and at dinner) also had a "sufficient connection" to the women's employment to be considered sexual harassment in the workplace, citing C.U. v. Blencow, 2013 HRTO 1667. Vice-Chair Hart held that the actions of the employer in phoning one complainant outside of work hours was discriminatory and "manifestations of an attempt by him as a man to exercise power, control, dominance and authority", and phone calls to one complainant when she was in Mexico to meet were contrary to s. 7(3) of the Code.
Turning to liability and damages, Hart found that Presteve was clearly the directing mind of the corporation. Based on a review of past Tribunal decisions, an award of $150,000 was appropriate to compensate one complainant for injury to dignity, feelings, and self-respect, stating that "the unprecedented nature of [the employer's] conduct in this case justifies a very significant award" and was warranted on "the basis of [the complainant's] vulnerability as a migrant worker."
Noting that damages for injury to dignity are compensatory rather than punitive, Vice-Chair Hart cited the decision, ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 in which the Ontario Divisional Court confirmed that an award to compensate for the "experience of victimization" is based upon a number of considerations, including: the impact of the infringement; the duration, frequency and intensity of the offensive conduct; the vulnerability of the complainant; objections to the offensive conduct; and knowledge that the conduct was unwelcome. The Vice-Chair also relied on the decision Arunachalam v. Best Buy Canada, 2010 HRTO 1880 in which the Tribunal set out two primary criteria for evaluating such damages: "the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination."
First, the respondent abused his position of power in relation to the complainants to sexually torment them. In the case of the second complainant with the higher damage award, the respondent was asked and felt compelled to perform certain sex acts with him. The objective seriousness of this conduct justified a large award. Second, both complainants were particularly vulnerable individuals, who feared that if they did not comply with the demands of their employer they would have their employment terminated and be sent back to Mexico. The conduct affected both complainants very seriously. This factor also militated in favour of a larger damage award.
Toronto Community Housing Corp. and OPSEU, Re., 2016 CarswellOnt 6420 (April 19, 2016):
Facts: In this case, the grievor was subjected to a poisoned work environment in that rumours were circulating in the workplace that she had engaged in an inappropriate sexual relationship with a supervisor and was thereby in receipt of preferential treatment at work. The Grievor alleged that the rumour caused resentment, anger, and frustration in co-workers who came to believe that the she was receiving unwarranted workplace benefits, leading to an untenable workplace environment for all. The rumour persisted in the workplace from at least early 2006 until sometime in 2008.
The employer failed at various opportunities to investigate, intervene, or act in any concrete way to counteract the resulting poisoned work environment. The plaintiff alleged failure to act on the part of the employer.
Breakdown of Damages Award: The Tribunal held that both the seriousness of the conduct, and the impact of that conduct in Presteve Foods Ltd., went far beyond the conduct here and was readily distinguishable. The decision in Staubach Ontario Inc. dealt with an employer's responsibility for a poisoned work environment. In that case, the applicant was subjected to a poisoned work environment for a period of about two years until her employment was terminated, contrary to the Code. The applicant, a real estate agent, had been disparaged on the basis of her sex by other agents working with her and a rumour had circulated that she was engaged in a sexual relationship with her manager. The employer failed to adequately respond, and then terminated her employment ostensibly because of her behaviour. An award of $30,000 in damages was made. In Heintz v. Christian Horizons, the Tribunal (prior to the 2008 Code amendments), ordered an employer to pay $10,000 in general damages in respect of the poisoned work environment, and a further $500 in damages for the willful and reckless infliction of mental anguish arising from the poisoned work environment. Of the cases referred to, the adjudicator found that Staubach Ontario Inc. and Christian Horizons provided guidance. "In my view, the circumstances in this case are more compelling than those in Quality Meat Packers. In this case the conduct leading to the poisoned work environment was specifically directed at the grievor (rumour mongering rather than generalized sexually explicit shop talk). It also continued for a significantly longer period without adequate intervention from the employer. Having regard to all of the above, I hereby direct the employer to pay to the grievor as general damages the sum of $10,500.00 within 60 days of the date of this award."
C.K. v. H.S., 2014 HRTO 1652 (November 13, 2014):
Facts: The applicant in this case alleged that the individual respondent sexually assaulted her shortly after she began working for the organization as a receptionist. She testified that she had trusted the respondent, who told her that he is a doctor and allowed him to take her blood pressure. It was then that he sexually assaulted her. The applicant argued that in the immediate aftermath of the assault she felt shaken, was frozen in shock, and was afraid the respondent may become violent. She stated that the assault was humiliating, and caused her to be hurt and embarrassed. Her evidence was that she could no longer be in a confined environment with a man and that the incident had left her anxious and had had serious negative effects on her. The applicant became socially withdrawn, and avoided contact for about a year after the incident.
Breakdown of Damages Award: The Tribunal held that there was no question that the respondent's sexual assault of the applicant amounted to sexual harassment under section 7(2) of the Code. The respondent was the applicant's co-worker, and the incident occurred in their workplace. The actions were obviously highly offensive and the respondent knew or ought to have known that his conduct toward the applicant was unwelcome:
"In my view, the incident ... can be seen as a course of vexatious conduct as the respondent committed a series of escalating acts of touching the applicant in a sexual manner, albeit in a short period of time, which the applicant rejected. Alternatively, if the assault is seen as a single incident, I have no difficulty finding that the respondent's actions, a sexual assault, were sufficiently egregious to amount to sexual harassment under the Code."
The Tribunal found that in light of the finding of fact that the respondent exercised no authority over the applicant, the applicant could not establish the required elements of section 7(3) of the Code. With respect to injury to dignity, feelings and self-respect, the Tribunal quoted ADGA Group Consultants Inc. v. Lane, in which the Divisional Court confirmed that the factors to be considered in setting the amount of damages include: humiliation, hurt feelings, the loss of self-respect, dignity and confidence by the applicant, the experience of victimization, the vulnerability of the applicant, and the seriousness of the offensive treatment. Finally, in light of Smith v. The Rover's Rest, 2013 HRTO 700 (CanLII), in which the Tribunal noted that recent Tribunal decisions that have considered sexual harassment and related issues in the context of employment having resulted in a range of awards, ranging roughly between $12,000 and $50,000 depending on the severity of the harassment and the effect on the applicant, the facts of the case supported an award of damages for injury to dignity, feelings and self-respect at the upper end of the range identified in Smith. Accordingly, the Tribunal awarded $45,000 for injury to dignity, feelings and self-respect; $6,760 less deductions required by law as compensation for lost wages; and pre-judgment interest.
G.M. v. X Tattoo Parlour, 2018 HRTO 201 (February 26, 2018):
Facts: The complainant filed a complaint under the Code alleging discrimination in employment as a result of sex, sexual harassment, sexual solicitation or advances, gender identity, and age. The damages sought were for "injury to dignity, feelings and self-respect".
While alone in the employer's tattoo parlour, the respondent steered conversations between him and the applicant, who was a 15-year-old unpaid intern, to sexual topics, asking her which genders she was attracted to and which sexual positions she liked. He put his finger in her vagina and touched her breasts with his mouth, as well as invited her to touch his penis, which she did to appease him, the Tribunal said. He also offered her money and a free tattoo for sex.
Breakdown of Damages Award: In a separate criminal trial, the respondent-owner was convicted of sexual touching and sexual interference, and sentenced to nine months. He had also plead guilty to sexual assault but that charge was stayed.
The applicant asked that the findings of the criminal trial be accepted as fact at the Tribunal hearing, which they were. The respondents did not oppose the request.
Both parties agreed that the terms of the internship constituted employment under of s. 5 of the Code, which relates to equal treatment with respect to employment.
The Tribunal awarded $75,000 in damages. The Court held that the amount of damages reflected the egregiousness of the actions by the respondent. The applicant's counsel emphasized the power imbalance between a boss and family friend and a 15-year-old, the betrayal of trust and her vulnerability as an unpaid intern intent on pursuing a career in the tattoo industry. The applicant cited several other cases of sexual harassment and sexual assault where the damages awarded were on the high end, including O.P.T. v. Presteve Foods Ltd., where the damages were $150,000 and $50,000.
A.B. v. Joe Singer Shoes Limited, 2018 HRTO 107 (January 24, 2018)
Facts: The applicant was a retail store employee of the defendant for over 18 years. She immigrated to Canada in 1979. The applicant moved into the apartment above the retail store, shortly after the commencement of her employment making the defendant her landlord as well. The applicant alleged that her employer sexually harassed her and assaulted her over a period of several years, equally while working as an employee and living as a tenant. In addition, the defendant-employer/landlord engaged in harassment, scolding her for her physical appearance, language skills and making statements regarding her place of residence.
Breakdown of Damages Award: The Tribunal awarded $200,000.00 in monetary damages for the applicant's injury to dignity, feelings and self-respect. Although it noted that the evidence before it was overwhelmingly "he said/she said" , the Tribunal concluded, much like in Presteve, that the applicant was particularly vulnerable, and depended on her employer for both work, and her residence. She was unable to escape the harassment.
Lessons Learned: Human Rights Tribunal Awards vs. Court Awards:
In a wrongful or constructive dismissal case involving discrimination or harassment, a complainant and/or plaintiff is generally not distressed about the dismissal itself, but what the employer did to hurt them and/or their feelings. Human rights damages are not taxable, whereas entitlements to reasonable notice are. Therefore, a human rights complaint is ideal for both employers and employees – it allows the complainant or employee to walk away with a larger amount, and the employer to take a smaller hit. The opportunity to settle for a lower amount works to both sides' advantages. There are also benefits to litigating in one forum. Keeping in mind that despite s. 46.1 of the Code a civil action must have a stand-alone cause of action, the courts allow human rights complaints and civil remedies to be pursued in unison. The opposite is not true – therefore, a human rights complaint which is tossed by the Tribunal could bar the employee of all civil remedies.
On the other hand, it has been said that the Human Rights Tribunal has been consistent at moving fairly quickly to mediation. In addition, mediators in civil cases generally do not always have human rights expertise, and as a result, are not always well-equipped to provide the necessary advice.
Note that finally, the Human Rights Tribunal does not allow for the recovery of costs. As a result, applicants may recover on the merits of the case, but still must pay their legal fees. To balance this inconvenience, plaintiffs in civil claims may always face onerous cost awards.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
