Employers and management-side employment and labour law attorneys have long commented on the uncertainty inherent in human rights complaints and the outcome of such complaints before adjudicators. The seemingly ever-moving target of what constitutes discrimination and what an employer must do in order to eliminate discrimination in the workplace up to the point of undue hardship prevents parties from truly understanding their respective roles and obligations. Until very recently, damages for human rights infringements were relatively modest, providing a measure of comfort – if you got it wrong, at least you wouldn’t be paying through the nose for it!
In recent years, however, human rights damages have slowly been creeping up. A recent decision from the Ontario Human Rights Tribunal has blown all prior damage awards for human rights infringements out of the water. Granted, the circumstances of the case were particularly egregious. Employers shouldn’t take comfort – once a new high watermark is set, other cases will soon follow…
In OPT v Presteve Foods Ltd., 2015 HRTO 675, two sisters, aged 30 and 22, left their homes in Mexico to come to Wheatley, Ontario, as temporary foreign workers for Presteve. The sisters each alleged that during the course of their employment with Presteve they were subjected to unwanted sexual solicitations and advances by the owner, Mr. Jose Pratas, ranging from sexual harassment, to sexual touching, to full-blown sexual assault, violating the Human Rights Code (and possibly criminal assault):
- OPT, the eldest sister, alleged that on multiple occasions Mr. Pratas would force her to go to dinner with him under threat that he would send her back to Mexico if she refused.
- When OPT was in the car alone with Mr. Pratas, he would move his hand along both of her legs up to the top of her leg and touch her vagina over her clothes. OPT would resist, but Mr. Pratas would continue. On one occasion Mr. Pratas asked OPT to take her pants down and became angry when she refused; she complied and he touched her bare legs with his hand and touched her vagina over her underwear, smiling. On another occasion in the car Mr. Pratas pulled down the zipper of his pants and forced OPT to touch his erect penis.
- On several occasions in his office, Mr. Pratas would put his hand inside OPT’s work coat and squeeze her breasts over the top of her clothes; on one occasion Mr. Pratas hugged and kissed OPT on the mouth without her consent.
- On three occasions, when Mr. Pratas was alone with OPT in the house where she stayed, Mr. Pratas forced OPT to perform fellatio, threatening to send her back to Mexico if she refused. On three separate occasions he asked her to pull her pants down and then climbed on top of her and penetrated her with his penis. In all of these instances OPT resisted and asked him to stop, but he continued.
- MPT alleged that on her first day of work, Mr. Pratas slapped her on the buttock and on two other occasions he touched her breast over her clothes while she was alone in his office. On two other occasions, while taking her to see a doctor, Mr. Pratas persistently asked MPT to have sex with him and touched her leg without her consent. MPT resisted in all of these instances, but he continued.
The Tribunal found that Mr. Pratas engaged in the egregious behaviour alleged by OPT and MPT, finding numerous violations of the Human Rights Code, in addition to Mr. Pratas’ actions being criminal offences.
According to the Tribunal, the seriousness of Mr. Pratas’ conduct towards OPT was unlike any other case the Tribunal had ever decided. This along with OPT’s particular vulnerability as a migrant worker put this case in entirely uncharted waters, justifying a substantial and unprecedented award. OPT received $150,000 plus pre-judgment interest for injury to her dignity, feelings and self-respect. MPT received $50,000 plus pre-judgment interest for similar reasons.
To put this award into context, in Smith v. Menzies Chrysler, which was previously the largest award the Tribunal had granted to an individual, the Tribunal awarded $50,000 in circumstances where the victim was not subject to sexual touching, let alone any sexual assault, and was not nearly as vulnerable. The $150,000 award granted to OPT signals a giant leap forward for the rights of victims who suffer extreme forms of sexual harassment in the workplace, and the award sheds a greater awareness on the hardships and challenges that temporary foreign workers face in Canada.
In light of this second point, the Tribunal found Presteve – the corporate employer – to be jointly liable with Mr. Pratas. Presteve was ordered to provide all workers hired under the temporary foreign workers program with human rights information and training in their native language for three years following the date of the decision.
This decision highlights once more the importance for employers to carefully navigate the shoals of human rights laws. Treading water is no longer enough – and has not been for a long time – an employer must demonstrate proactive approaches to meeting and enforcing human rights obligations in the workplace. This case is indeed a watershed and if this author had a crystal ball, he’d look into its murky depths and foretell that we’ll be seeing more cases like this – in far less outrageous circumstances. Employers beware!