( Disponible en anglais seulement )
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.