A recent decision of the Ontario Human Rights Tribunal sets a new
record for general damages. The facts of the case are particularly
troubling involving two migrant sisters who alleged serious and
ongoing sexual solicitations and advances by the owner. Despite the
extreme facts of this decision it highlights the continuing trend
to higher damage awards at the Tribunal, a trend which is not going
to abate and a trend which employers need to be both aware of and
proactive in addressing their exposure.
O.P.T. v. Presteve Foods Ltd. 2015 HRTO 67 involved 16
days of hearing. After finding violations of the Ontario
Human Rights Code for actions of unwanted sexual solicitation
and advances, sexual harassment and creation of a poisoned work
environment by the personal respondent, the owner and principal of
the employer company, and finding the employer company was held
jointly and severally liable, the Tribunal awarded damages of
$150,000 plus interest of approximately $15,000 and $50,000 plus
interest of approximately $4,500 to the two applicant
employees. The $150,000 damage award is a new high water mark
for general damages at the Tribunal.
The seriousness of the conduct was described in the case as
unprecedented in terms of previous decisions and certainly any one
reading the case would agree as to the extreme nature of the
conduct which ranged from sexual harassment to assault. It is
important to note that the two employees were temporary foreign
workers who came to Ontario from Mexico to work at a processing
plant. The Tribunal heard from an expert witness providing
opinion evidence on the temporary foreign worker program in Canada
and the related vulnerability of workers in the program, especially
women. The Tribunal noted that while the expert did not have
direct involvement with the two employees whose matter was before
it, the expert did provide relevant evidence on factors to be
assessed in any remedial order relating to the particular
vulnerability of female migrant workers. The extreme nature
of the owner's conduct towards the employees, particularly
O.P.T., and her particular vulnerability as a migrant worker are
critical factors in her award of $150,000.
Despite the extreme facts of this case do not dismiss this
decision as an isolated one. This decision demonstrates the
willingness of the Tribunal to provide significant damage awards
which is part of an existing and evolving trend. All signs point to
a continued increase in damage awards at the Tribunal. Employers
must take note of these developments and ensure that they are
proactive in having training and monitoring programs; having
internal complaints processes which are taken seriously; taking
action to address discriminatory conduct in the workplace by deed
not just policy or words by addressing inappropriate conduct
quickly. Yes, these obligations are significant and have
significant costs associated with them, however, the evolving
damage awards demonstrate the significant financial consequences
associated with failure to take such steps.
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