The Ontario Superior Court of Justice’s recent decision in Silvera v. Olympia Jewellery Corporation 2015 ONSC 3720 illustrates how effective a plaintiff’s civil action can be in dealing with a workplace sexual assault.
The case arose after Ms. Silvera, who had worked as a receptionist/administrative assistant, was fired after a two week absence from work due to dental surgery. At the time, she earned $28,000 a year, and had worked for the employer for one and a half years. She brought an action against Olympia and her former supervisor in his personal capacity for damages arising from a wrongful dismissal, and from a series of sexual assaults and battery, sexual harassment, and racial harassment. Ms. Silvera’s daughter claimed for damages for the loss of guidance, care and companionship.
The defendants did not appear at trial. Consequently, the trial judge granted a motion brought by the plaintiffs to strike out their defence, and all of the factual allegations contained in the Statement of Claim were taken as admitted.
These facts were that:
- During the course of her employment at Olympia, Ms.Silvera was subjected to racial and sexual harassment and repeated sexual assaults by her supervisor, which included grabbing her breasts and buttocks, and giving her an uninvited massage where he attempted to put his hands down the front of her shirt;
- The supervisor engaged in this conduct knowing that Ms. Silvera had been sexually abused as a child;
- The impact of this conduct on Ms. Silvera included her drinking and her isolating herself; and
- Ms. Silvera continued to work at Olympia because she felt “trapped” as a single mother who needed to support her daughter.
The trial judge also accepted the evidence of a clinical psychologist, who stated that the effects of the supervisor’s conduct on Ms. Silvera was particularly severe because, among other reasons, she had no “capable guardian”; i.e. someone in the organization who could step in to prevent the conduct, and because there were no sexual harassment policies in place or mechanisms to address the issue. The psychologist diagnosed her with chronic post-traumatic stress disorder, major depressive disorder and alcohol abuse in sustained remission.
The trial judge found that the supervisor engaged in several acts of battery, breached his fiduciary duty to Ms. Silvera, did not fulfil his duty of care under the Occupiers’ Liability Act, and engaged in racial and sexual harassment under the Human Rights Code. As the employer, Olympia was held vicariously liable for the supervisor’s behaviour. The trial judge further found that the impact on Ms. Silvera was significant, including a diminished closeness with her daughter, and an impaired earning capacity because she was no longer comfortable working with older men in close proximity or in a supervisory role. There was no clear prognosis of how long her symptomology would continue.
Ms. Silvera was awarded a total of $312,056.56 as follows: (i) the defendants were jointly and severally liable for $206,711.93 for the supervisor’s conduct, broken down as (a) $90,000 for general and aggravated damages, (b) $10,000 for punitive damages, (c) $30,000 for breach of the Human Rights Code, (d) $42,750 for costs of future therapy care, (e) $37.18 for the subrogated OHIP claim, and (f) $33,924.75 for future lost income; (ii) Olympia was to pay Ms. Silvera $90,344.63 for wrongful termination; and (iii) the Defendants were to jointly and severally pay Ms. Silvera’s daughter $15,000 in damages under the Family Law Act.
What is the significance of this case?
Damages for workplace sexual harassment and assault are rising
Gone are the days that misconduct of this kind would only be “worth” a few thousand dollars to a plaintiff or a complainant if they pursued the matter. Ms. Silvera earned less than $30,000 a year, and had not worked for the employer for a long time. Nevertheless, the damage to her as a result of the defendants’ behaviour was severe and she received a very substantial award. Clearly, legal decision makers are taking a very serious view of this type of behaviour, and are using their ability to award damages to send a clear message of the legal risk to employers if this type of behaviour occurs in the workplace.1
Strategic choice of forum
This case could have been brought to the Human Rights Tribunal, but here counsel took the step of bringing a civil action, which incorporated the Human Rights Code violations, as well as the claim for general and aggravated damages and damages under the Family Law Act. In our view, this choice was a good one as it resulted in a more comprehensive damage award than what would have occurred at the Tribunal.
Effective use of psychological evidence
The psychologist’s report spoke to the impact of the supervisor’s conduct on Ms. Silvera, and also spoke to the effect of her not having been protected by the employer. This allowed the trial judge to assess and award general and aggravated damages.
Interplay with workers’ compensation
Ordinarily, workers who sustain workplace injuries (including traumatic mental stress) resulting from an accident that arose out of and in the course of employment cannot sue their employers if the employer is, or is required to be, registered for workers’ compensation coverage. Therefore, before relying on this case as a precedent, plaintiff’s counsel should consider whether such a claim could survive an employer’s application to the Workplace Safety and Insurance Appeals Tribunal under s. 31 of the Workplace Safety and Insurance Act (the “WSIA”) seeking an order removing the employee’s right to sue. As to whether injuries sustained as a result of a workplace sexual assault are compensable under the WSIA, we note that there are cases that have found yes, and cases that have found no, with the results being driven by the specific facts of each situation.
“Clearly, legal decision makers are taking a very serious view of this type of behaviour, and are using their ability to award damages to send a clear message of the legal risk to employers if this type of behaviour occurs in the workplace.”