In a recent decision,1 the Human Rights Tribunal of Ontario (the Tribunal) awarded unprecedented damages for injury to dignity, feelings and self-respect totalling approximately $220,000 to two temporary foreign workers who were repeatedly sexually harassed. In addition to setting a new record for such damages in the context of human rights proceedings, this case also makes important determinations on a number of other issues of potential concern to employers facing liability under the Ontario Human Rights Code (the Code).2
Background
This case involved multiple incidents of sexual harassment over
several years. The applicants were two sisters, O.P.T. and M.P.T.,
who came from Mexico as temporary foreign workers to work at
Presteve Foods Ltd. Jose Pratas, the personal respondent, was the
owner and principal operator of Presteve, the corporate respondent
that owned the plant.
The applicants alleged Pratas and Presteve had violated the
Code, including when Pratas forced O.P.T. to have sex with
him under threat of dismissal. The applicants were particularly
vulnerable to such a threat because their work permits were
restricted to their employment with Presteve. Furthermore, Presteve
provided housing for its temporary foreign workers. As such, the
immediate consequences of dismissal were that the applicants would
have no place to live and would be precluded from working in
Canada.
Pratas did not testify, nor did anyone from Presteve. The Tribunal
concluded that, because Pratas failed to testify, it could draw the
adverse inference that his testimony would not have helped his
case. While Pratas' counsel argued he should be excused from
testifying on grounds of age and ill health, the Tribunal refused
to accept this as a valid excuse without any supporting medical
evidence.
The Tribunal accepted the applicants' allegations and that such
conduct constituted serious violations of the Code.
Remedy
The applicants sought a number of remedies, including $250,000
($150,000 for O.P.T and $100,000 for M.P.T) for injury to their
dignity, feelings and self-respect.
The Tribunal surveyed other decisions in which damages for injury
to dignity, feelings and self-respect were awarded in amounts as
high as $50,000.3
Here, however, the severity of the conduct in question was found
to be "unprecedented" relative to the Tribunal's
prior decisions. O.P.T. was accordingly awarded $150,000 and M.P.T.
was awarded $50,000, each with interest. The Tribunal concluded
that a significant award of damages was appropriate because of the
applicants' vulnerability as migrant workers who were totally
reliant on their employer. Thus, the award was proportionate to
those in the long list of cases that the Tribunal canvassed to
calibrate the damage award.
The Tribunal also ordered that Presteve provide any workers hired
under the temporary foreign worker program with human rights
information and training in their native language for a period of
three years.
The Tribunal held Pratas and Presteve jointly and severally liable
for the monetary damages. Under the Code, a corporation is
deemed to be liable for the actions of employees taken in the
course of their employment. The Tribunal held that such actions
need not be within the "four squares" of the
perpetrator's job description to be performed "in the
course of his or her employment." Furthermore, when the
perpetrator is a "directing mind" of the corporate
respondent, as in this case, this provides a basis for imposing
equal liability on the corporate respondent for the actions of its
employee.
Delay
The Tribunal declined to dismiss the application for delay,
despite the fact that the application was filed more than one year
after the last incident of discrimination or harassment. The
applicants claimed that the delay resulted from their lack of
knowledge of their rights under the Code, which the
Tribunal has repeatedly held is insufficient to demonstrate that a
delay was incurred in good faith.
However, in this case, the Tribunal considered that the applicants
had limited ability to communicate in English and no knowledge of
Ontario's legal processes – traits closely connected to
the Code-protected characteristics of ancestry and place
of origin. The Tribunal held that "good faith" can be
found where a Code-protected ground is closely connected
to the reason for the delay.
Implications
In 2012, the Pinto Report4 recommended that the
Tribunal "significantly increase" the monetary range of
general damage awards when discrimination has been proven. Since
that time, such awards have been slowly increasing. This decision
demonstrates what the Tribunal is prepared to award in egregious
Code violations perpetrated on particularly vulnerable
applicants, and may have the effect of encouraging higher awards in
future cases.
In addition, the decision demonstrates that the Tribunal will take
an expansive view of what conduct is "in the course of ...
employment." As such, employers are reminded that they may be
liable for employees' Code violations, even when such
conduct is unauthorized and outside of the "four squares"
of any job description, particularly when an employee is a
directing mind of the employer.
Furthermore, failure to testify (or perhaps call the evidence of a
key witness) is at a party's peril. An adverse inference could
well be drawn that the witness' evidence would not have been
helpful to the party's case.
Thanks to Joe Bricker, summer student, for his assistance in
preparing this legal update.
Footnotes
1 OPT v Presteve Foods Ltd, 2015 HRTO 675.
2 Human Rights Code, RSO 1990, c H 19.
3 Smith v Menzies Chrysler, 2009 HRTO 1936.
4 Report of the Ontario Human Rights Review 2012, November 8, 2012, Andrew Pinto.
Norton Rose Fulbright Canada LLP
Norton Rose Fulbright is a global legal practice. We provide the world's pre-eminent corporations and financial institutions with a full business law service. We have more than 3800 lawyers based in over 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.
Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.
Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.
Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa (incorporated as Deneys Reitz Inc) and Fulbright & Jaworski LLP, each of which is a separate legal entity, are members ('the Norton Rose Fulbright members') of Norton Rose Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein helps coordinate the activities of the Norton Rose Fulbright members but does not itself provide legal services to clients.
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.
