As we have noted in previous updates, the size of general
damages awarded by human rights tribunals has trended sharply
higher in recent years (see our update on this phenomenon
here). A decision from the Human Rights Tribunal of Ontario has
accelerated that increase, nearly doubling the previous Canadian
The complainants were two sisters from Mexico who were brought
to Canada to work at a fish processing plant as temporary foreign
workers. During their employment, they would stay at a house
operated by the corporate employer, subject to strict house rules
including curfew and restrictions on outside visitors. Upon
arriving in Canada, the principal of their employer began a
campaign of aggressive sexual harassment against them both,
culminating in several sexual assaults upon the older sister and
the deportation of the younger sister following her rebuff of the
principal's sexual advances.
Ultimately, the principal pleaded guilty to a criminal charge of
simple assault, although the principal maintained that the assault
was non-sexual in nature. The principal did not testify before the
The Tribunal held in favour of the sisters, finding that the
principal of the employer separated the older sister from her
fellow workers and repeatedly propositioned her under the threat of
deportation. The Tribunal also found that the principal had engaged
in a pattern of sexual solicitations and advances towards the
younger sister. Although the Tribunal could not find that the
younger sister's deportation was a reprisal, it found that it
was related to the inappropriate sexual conduct and was therefore
discrimination under the Code.
The only damages claimed were general damages. As the alleged
perpetrator was the principal of the corporate employer, the
corporate employer was also held liable for the conduct.
The Tribunal called the conduct of the principal towards the
older sister "unprecedented" before the Tribunal. The
Tribunal awarded the older sister an equally unprecedented $150,000
in general damages, citing the particular vulnerability of
temporary foreign workers and the profound impact of the misconduct
upon the complainant.
The Tribunal found that the mistreatment suffered by the younger
sister merited an award of $50,000 in general damages.
Obviously the facts of this case are extreme and shocking.
Nonetheless, this case still involves an award of double the
previous record in general damages – $75,000 by the British
Columbia Human Rights Tribunal.
Although overshadowed by the larger award, the $50,000 awarded
to the younger sister is also significant, as with the exception of
the deportation, the sexual harassment she experienced is more
consistent with other sexual harassment cases. Whether this becomes
a new baseline for general damages in sexual harassment cases
remains to be seen.
Ultimately, this decision underscores the need for employers to
have strong anti-sexual harassment training, policies and
monitoring processes. While in this case the harasser was the
principal of the company, making it almost impossible to avoid
liability, if such conduct were committed by a lower-level
employee, an effective human resources policy could not only help
protect the employer against liability, it could identify and
address the problem before it escalated.
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.
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The new Sexual Violence and Harassment Action Plan Act (Bill 132) imposes a range of new duties in regard to workplace harassment. These include requiring employers to amend their programs to implement workplace harassment policies and establish new rules for the investigation of workplace harassment incidents or complaints.
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