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Human Rights Tribunal awards record general damages for sexual harassment of migrant workers

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In his Report on the Ontario Human Rights Review 2012, Andrew Pinto commented on the general damages awards being awarded by the Human Rights Tribunal of Ontario (“HRTO”). Noting that general damages awards of $5,000, $10,000 and $15,000 seemed to correspond to low, medium and high damage awards, he commented that “there appears to be a widening gap between the Tribunal’s insistence that human rights awards should be meaningful, and the actual monetary compensation that is awarded in most instances.” Mr. Pinto recommended:

The Tribunal should reconsider its current approach to general damages awards in cases where discrimination is proven. The monetary range of these awards should be significantly increased.

In recent years, the HRTO (and other decision makers across Canada) have demonstrated a willingness to do just that where the facts warranted such an award. Last month, however, in the face of conduct the seriousness of which the HRTO called “unprecedented” in terms of its decisions, the HRTO awarded two complainants $150,000.00 and $50,000.00 respectively in general damage awards. The former is by far the largest award of general damages by a human rights tribunal in Canada and demonstrates to employers that exceptional breaches of the Ontario Human Rights Code can have significant financial consequences. The case is O.P.T. v. Presteve Foods Ltd. 2015 HRTO 67.

The applicants, known as O.P.T. and M.P.T., were temporary foreign workers who had come from Mexico to Ontario to work for the respondent organization, Presteve. The personal respondent, Mr. Jose Pratas, was the owner of Presteve. The applicants alleged that they were subjected to “unwanted sexual solicitations and advances by the personal respondent, including sexual assaults and touching; a sexually poisoned work environment; discrimination in respect of employment because of sex; and reprisal.” Specifically, O.P.T. made numerous allegations, including that Mr. Pratas invited her on dates, told her he loved her, sexually assaulted her, and forced her to touch him in a sexual manner and perform sexual acts on him. She said that she did not want to do these things with Mr. Pratas but “felt compelled to do so due to threats that the personal respondent would send her back to Mexico.” M.P.T. said that Mr. Pratas slapped her on the buttocks, touched her breasts, sexually propositioned her and threatened to send her back to Mexico if she went to get a coffee.

The Vice-Chair Mark Hart made numerous factual findings against the personal respondent and concluded that he engaged in a persistent pattern of sexual harassment in the workplace towards O.P.T. and that his “pattern of persistent and unwanted sexual solicitations and advances and sexual harassment towards O.P.T. created a sexually poisoned work environment for her in violation of s. 5(1) of the Code.” The Vice-Chair further found that the personal respondent engaged in a pattern of sexual solicitations and advances towards M.P.T. and subjected her to sexual harassment as well.

Vice-Chair Hart noted that the Tribunal had the power to award compensation for the intrinsic value of the infringement of rights under the Code as compensation for the loss of the right to be free from discrimination and the experience of victimization and listed some factors that the Tribunal should consider when awarding such compensation, including “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.”

After reviewing a number of general damage awards, none of which exceeded $50,000.00, in which the offensive treatment was seen as particularly serious, the Vice-Chair proceeded to award O.P.T. and M.P.T. $150,000.00 and $50,000.00 respectively. With regard to O.P.T.’s award, he wrote:

In my view, the amount of compensation for injury to dignity, feelings and self-respect requested on behalf of this applicant is not unreasonable and is justified, given the unprecedented seriousness of the personal respondent’s conduct in this case, the particular vulnerability of O.P.T. as a migrant worker, and O.P.T.’s personal circumstances and the impact of the conduct on her. Accordingly, in my view, an award of compensation for injury to dignity, feelings and self-respect in the amount of $150,000 as requested on behalf of O.P.T. is appropriate.

While the facts in this case were particularly egregious, this decision confirms a willingness of the Tribunal to issue large general damage awards when it believes such an outcome is warranted. It should serve further notice to employers on the importance of ensuring that behaviour in the workplace does not run afoul of the Human Rights Code. The financial consequences for employers of failing to maintain a discrimination and harassment-free workplace look to be increasingly significant.

Cory Boyd

About the Author: Toronto Employment Lawyer Cory Boyd, since beginning his career, has worked with the Ontario Human Rights Commission, the Ministry of Community Safety and Correctional Services, and Toronto Community Housing as an in-house investigator and human rights consultant. At Rubin Thomlinson, he continues to apply his analytical skills to conducting workplace investigations and preparing thorough reports.