Last week, Gretchen Carlson, the Fox News anchor, sued Fox News
chairman Roger Ailes, accusing him of harassment and sexism. Though
Ailes denies the allegations, the trial will be closely followed,
both because of the personalities involved and the highly-charged
allegations. Closer to home, Raj Shoan, the former Ontario
commissioner for the Canadian Radio-Television and
Telecommunications Commission, filed a lawsuit alleging racism and
harassment at the CRTC.
How are harassment or discrimination allegations treated by
Ontario courts? In two recent decisions, the Court of Appeal for
Ontario sheds light on how employers and employees can expect
harassment or discrimination allegations to pan out.
In Strudwick v Applied Consumer &
Clinical Evaluations Inc., Applied Consumer
fired Vicky Strudwick for insubordination and misconduct after a
"stunt" at a company event. In fact, for the last seven
months of her employment, Applied Consumer's employees had
staged a campaign of discrimination and harassment against
Strudwick, who is deaf, to force her to quit. She was called
"stupid" and a "fool". Her supervisor and the
general manager refused even the most basic accommodations (for
example, Strudwick offered to pay for a visual fire
alarm—Applied Consumer refused). After she was fired, Applied
Consumer refused to pay her any outstanding pay or benefits.
Strudwick sued. Applied Consumer didn't defend the case at
first, but then tried to delay the eventual trial. Ultimately, the
trial judge awarded Strudwick $114,000 in damages (representing 24
months pay in lieu of notice). The Court of Appeal overturned this
decision, awarding Strudwick over $240,000 in damages (it seems
clear from the decision that the Court would have gone higher but
was limited by Strudwick's own claim). The court also awarded
several other categories of damages, which were substantial:
$40,000 for violating Strudwick's
right to be free from discrimination in the workplace under the Human Rights
$35,294 for the intentional
infliction of mental suffering, which includes compensation for
cognitive therapy and to address Strudwick's pain and
$70,000 in aggravated damages for the
way Strudwick was fired;
$55,000 in punitive damages because
the compensatory damages awarded simply could not respond to
Applied Consumer's conduct.
Hamilton-Wentworth District School
Board v Fair also dealt with discrimination
allegations. There, Sharon Fair developed an anxiety disorder after
working for the Hamilton-Wentworth District School Board for 13
years. After an 18-month leave, Fair sought to return to work.
Though she was ready and able, the Board never considered her for
various full-time job openings. Eventually, in July 2004, the Board
fired her. For almost eight years, the case worked its way through
the human rights system. Finally, in February 2012, the Human
Rights Tribunal of Ontario found that the Board had discriminated
against Fair. Over a year later, the Tribunal ordered the Board to
reinstate Fair to a suitably equivalent position and pay her back
wages from June 2003 (over $400,000). On appeal, the Divisional Court and the Court of Appeal
upheld the Tribunal's finding that Fair was not accommodated
and upheld the damages awards.
The lessons from these two cases are simple:
employers must not only prevent
workplace harassment and accommodate employees with disabilities
but take active steps to stop ongoing harassment once they learn of
if an employee is harassed or
discriminated, they aren't only entitled to wrongful dismissal
under the Human Right
Code, employers can be ordered to reinstate employees and
pay them back wages, no matter how long the employee has been away
from work and regardless of the cause of the delay;
Ontario courts can order a myriad of
other damages to remedy the pain and suffering caused by the
workplace harassment or the employer's poor conduct during
Both of these cases turn on very specific facts. But, in both
cases, the employer's failure to deal with the issues in a
timely manner was one cause of both cases spiraling out of control,
and causing serious damages for the employees.
Ontario employers are also reminded of the upcoming changes to the Occupational
Health and Safety Act, which will come into force in
September 2016, providing additional protections against sexual
harassment in the workplace.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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