The Human Rights Tribunal of Ontario (the “Tribunal”) recently ordered the highest damage award in its history for injury to dignity, feelings and self-respect. In OPT v Presteve Foods Ltd, 2015 HRTO 675, two workers employed through a temporary foreign worker program brought a human rights application against both an individual and a corporate respondent alleging discrimination on the basis of sex, and claiming that they had been sexually harassed, subject to sexual solicitation and advances, and had been reprised against. The Respondents were ordered to pay $200,000 in damages.

The Applicants, two sisters from Mexico, were subject to very serious misconduct at the hands of the personal respondent. The personal respondent was the owner and principal of a fish processing plant where the Applicants worked. The personal respondent’s misconduct included sexual solicitations followed by threats that the Applicants would be sent back to Mexico if they did not comply with his requests. The personal respondent also exhibited controlling behaviour over the Applicants. For example, the Applicants were only able to visit a doctor if the personal respondent drove them there himself.

The allegations against the personal respondent were set out in detail by the Tribunal. The Tribunal found that the following incidents had occurred with respect to the first Applicant, O.P.T.:

  • the personal respondent invited O.P.T. out to eat dinner with him alone on many occasions and yelled at her and threatened to send her back to Mexico when she advised she did not want to go;
  • the personal respondent touched O.P.T. inappropriately;
  • the personal respondent required O.P.T. to perform sexual acts on him; and
  • the personal respondent required O.P.T. to have sexual intercourse with him.

The Tribunal also found that after O.P.T. returned to Mexico, the personal respondent contacted her on multiple occasions and also offered to visit her in Mexico.

Further, the Tribunal found that the following incidents had occurred with respect to the second Applicant, M.P.T.:

  • the personal respondent had touched M.P.T. inappropriately; and
  • the personal respondent sexually propositioned M.P.T. on multiple occasions.

M.P.T. was fired and sent back to Mexico after an incident where she went out to get a coffee one evening against the personal respondent’s wishes and refused to tell the personal respondent where O.P.T. was.

Criminal charges were also laid against the personal respondent with respect to the conduct at issue before the Tribunal.

The Decision

The Tribunal began by rejecting the Respondents’ argument with respect to the timeliness of the Application. The Tribunal found that the Respondents’ actions constituted a “series of incidents” pursuant to the Human Rights Code (the “Code”) and that the last incident in the series had occurred within one year of the application date. Further, the Tribunal noted that the Applicants did not know of their rights under the Code due to their lack of familiarity with Canadian law and the language barrier and, therefore, if there was any delay, it had been incurred in good faith.

The Tribunal also rejected an argument advanced by the respondents that the Applicants had fabricated their allegations against the Respondents to advance their immigration status and remain in the country.

After reviewing the evidence, and drawing a negative inference from the fact that the personal respondent did not testify, the Tribunal found that the Applicants were credible. The Tribunal concluded that the personal respondent had engaged in a “persistent and ongoing pattern of sexual solicitation and advances” towards both applicants during their employment. The Tribunal found that the personal respondent knew or ought to have known that his conduct was unwelcome, which constituted a violation of section 7(3)(a) of the Code. The Tribunal also found that the personal respondent had sexually harassed both applicants in contravention of section 7(2) of theCode. The Tribunal further found that incidents that occurred outside of work could be regarded as “in the workplace” because the personal respondent threatened to send the applicants back to Mexico and this conduct detrimentally affected the Applicants’ work environment. The Tribunal also found that the Applicants had been subjected to a sexually poisoned work environment, contrary to section 5(1) of the Code.

While the Tribunal rejected M.P.T.’s claim of reprisal in relation to being sent back to Mexico, the Tribunal found that the act of returning M.P.T. to Mexico constituted discrimination on the basis of sex because it was associated with her failure to tell the personal respondent of O.P.T.’s whereabouts, which was linked to the personal respondent’s persistent attempts to have a sexual relationship with O.P.T.

The Tribunal found that the personal respondent and corporate respondent were jointly and severally liable for all of the damages owed to the Applicants, including the claims of sexual harassment, as the personal respondent was the “directing mind” of the corporate respondent.

The Tribunal noted that the seriousness of the conduct experienced by O.P.T. was unprecedented in the Tribunal’s previous decisions. The Tribunal further noted that O.P.T. was deserving of a significant monetary award because of her vulnerability as a migrant worker and because she was put in a position of being “totally reliant upon her employer”.

The Tribunal awarded $150,000 for injury to dignity, feelings and self-respect to O.P.T. The Tribunal also awarded a further $50,000 for injury to dignity, feelings and self-respect to M.P.T. The Tribunal further advised the corporate respondent that it was required to provide all workers from a temporary foreign worker program with human rights information and training in the worker’s native language.

Commentary

The Tribunal’s decision in Presteve Foods highlights the Tribunal’s growing trend of ordering higher damage awards for significant breaches of the Code. The decision provides caution to employers to ensure that harassment is not occurring in the workplace and that employees are made aware of their rights and obligations under the Code, particularly for employees that may not understand English.

The decision further suggests that the Tribunal may be willing to consider conduct that is in some way linked to the workplace as being “in the workplace” where it has a negative effect on an employee’s working environment