In Oliva, Pascoe, and Strong v Gursoy (2024 AHRC 45),the Alberta Human Rights Tribunal (the “Tribunal”) set a new high watermark in relation to general damages for injury to dignity, feelings, and self-respect.
The three complainants, Oliva, Pascoe, and Strong, were former employees of TJ Construction Management Ltd. (“TJCM”). The respondent, Gursoy, was their boss, and the CEO, sole director, and sole shareholder of TJCM.
Oliva, Pascoe, and Strong each alleged that Gursoy subjected them to gender-based discrimination (sexual harassment), contrary to section 7 of the Alberta Human Rights Act (the “Act”).
In addition, Oliva alleged discrimination based on a physical disability, while both Oliva and Pascoe alleged that Gursoy filed retaliatory Statements of Claim against them, contrary to section 10 of the Act.
After TJCM made an assignment into bankruptcy, by way of interim decision (2022 AHRC 135), the Tribunal granted the Director's application to add Gursoy as a personal respondent, pursuant to its authority under section 28 of the Act. The Tribunal held that Gursoy was “causally connected” to the alleged violations of the Act and there was no prejudice to his ability to provide a full answer and defense. The Tribunal acknowledged that the bankruptcy of the corporate respondent would result in a stay of proceedings and would deprive the complainants of a meaningful remedy in relation to Gursoy's conduct, which would be contrary to the purpose of the Act.
The Tribunal made extensive findings substantiating the complaints against Gursoy. In particular, the Tribunal outlined numerous instances of Gursoy subjecting each of the complainants to non-consensual sexual touching, inappropriate sexual comments, and sexual advances, amongst various other instances of inappropriate and unwelcome conduct found to be sexual and harassing in nature. The Tribunal found that Gursoy's conduct and repeated instances of sexual harassment had a “profound effect” on each of the complainants.
In the case of Strong, although some of the behaviour she complained about fell outside the one-year limitation period for filing a complaint, the Tribunal confirmed that where actions complained of are a continuing contravention of the Act (as opposed to individual breaches), the Tribunal may consider the entire course of conduct, so long as some portion of it falls within the one year limitation period.
After making findings of fact and considering prior relevant decisions, the Tribunal awarded the following general damages:
Oliva:
- $75,000 for discrimination based on gender (sexual harassment) and physical disability, which ultimately resulted in her termination
- $50,000 for filing two retaliatory Statements of Claim
Pascoe:
- $30,000 for gender-based discrimination, which ultimately resulted in her termination
- $25,000 for filing one retaliatory Statement of Claim
Strong:
- $50,000 for gender-based discrimination (sexual harassment), which ultimately resulted in her termination
With respect to general damages for the retaliatory actions, the Tribunal found that Gursoy's Statements of Claim against Oliva and Pasco were linked to their complaints and that his substantial (if not dominant) intention was to retaliate, intimidate, and upset the complainants to discourage them from advancing their claims.
In addition, the Tribunal released a subsequent costs decision awarding each complainant $10,000 (2024 AHRC 81). Notably, the Tribunal acknowledged there was no evidence that the complainants incurred substantial legal fees. However, the Tribunal held that Gursoy engaged in “constantly egregious” behaviour, making a costs award appropriate:
Key Implications
This decision features the highest general damages award for injury to dignity in Alberta human rights case law. This decision confirms the trend of rising general damages awards in Alberta and sends a clear message that there is no cap on general damages for injury to dignity caused by discriminatory conduct.
Employers should be aware of the following three implications of this case:
- The Tribunal is prepared to award substantial general damages for injury to dignity arising from retaliation;
- A director or officer may properly be added as a respondent to the proceedings when they are causally connected to the alleged violation of the Act, and will be held personally liable, and when the complainant would otherwise be deprived of a meaningful remedy as a result of the respondent company being non-operational; and
- The Tribunal is prepared to award significant costs against a respondent, even when there is no evidence of significant legal expenses incurred by a complainant, in order to address abusive conduct that negatively impacted the Tribunal process and/ or the complainants.
While the facts of this decision are exceptional, employers should be aware of the potential and increasing liability they may face if proper steps are not taken to address discrimination in the workplace.
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