Human Rights Tribunal found nanny was sexually assaulted, isolated and underfed by employer

Where an employer fails to meet its human rights obligations, the damages awards for the “injury to dignity” component of damages are becoming increasingly significant. The recent decision of the British Columbia Human Rights Tribunal in PN. v. FR and another (No. 2), is an example of the scale of penalty an employer can face where the breach of human rights obligations is at the extreme end of the scale.

The complainant, a domestic worker from the Philippines, was placed with the respondents as a housekeeper and caregiver to their two children. The complainant had two children of her own, whom she left in the Philippines, and she sent money back to support them. She first worked for the family in Hong Kong and, after about a year, the respondents persuaded her to join them when they moved to Canada. The complainant was only in Canada for about 6 weeks before she escaped from the hotel where the family was staying, eventually taking refuge with an organization that assists victims of human trafficking.

The complainant’s treatment while in Hong Kong and after the move to Richmond, British Columbia, was horrendous. As summarized by the Tribunal:

[133] While working for the respondents, PN was exploited. She had to perform sexual acts at the whim and insistence of her employer, she was humiliated and degraded by her other employer, and she was even made fun of by the children who were in her care. She was isolated, underfed and treated like she was sub-human; all because she was a young Filipino mother who needed the job to take care of her own children.

The complainant’s contract of employment, entered in Hong Kong, provided for pay and conditions well below the minimum standards required in British Columbia, including working long hours with no break and no overtime pay. After paying for agency fees and training, the complainant started her employment in debt, and the respondents would remind her that she needed to comply with their demands so that she could repay her debt and support her children. Before moving to Canada, the respondents forced the complainant to sign another contract, which required her to repay the cost of her Canadian visa and plane tickets (almost $14,000) if she left her employment without giving a month’s notice.

When the family arrived in Canada, they stayed in a two-bedroom suite in a hotel while the respondents looked for a house to buy in Richmond. The complainant was not permitted to leave or eat without permission, and the sexual assaults by the male respondent continued. He warned her that if she told anyone, she should be worried about her children. Depressed and isolated, the complainant finally took an opportunity to leave when she was supposed to be emptying the garbage, walking away with no money, clothes, passport, or even her glasses. She knew no one and, after receiving help from a Filipino hotel employee and people she met through a church, she was eventually put in touch with a specialized facility which assists victims of human trafficking. She discovered that the visa obtained by her employers was visitor’s visa, so she was unable to work or to access any government benefits. She received counselling and was diagnosed with post-traumatic stress disorder.

In an earlier decision, the Tribunal ruled that it had no jurisdiction over the treatment of the complainant while she was working in Hong Kong, but went on to address the consequences of the incidents that occurred in Richmond.

The Tribunal held that the complainant was discriminated against on the intersecting grounds of race, colour, ancestry, family status, sex and age, accepting expert evidence on stereotypes and prejudices that apply to Filipino domestic workers, especially in Hong Kong. The complainant was found to have been a “virtual slave”, and her treatment was based on the characteristics stereotypically attributed to Filipino workers.

In addition, the Tribunal found that the respondents retaliated against the complainant after she filed her complaint, when their Hong Kong lawyers wrote demanding repayment of the $13,600 in the agreement, and alleging that her claims in the human rights complaint amounted to defamation. The letter was copied to various people not parties to the human rights complaint, in order to undermine the complainant’s credibility and to attempt to have her deported from Canada.

The complainant was awarded wages for the time worked in Canada based on the minimum standards in theEmployment Standards Act, including overtime pay. Strangely, although the Tribunal accepted the existence of an employment relationship and the requirement to pay wages for the purposes of past wage loss, it refused to award any damages for future wage loss. The Tribunal gave two reasons for this conclusion: first, that doing so would “enforce a discriminatory contract”; and second, that the complainant was not entitled to work in Canada. It seems inconsistent that the Tribunal would not, at the very least, find that the complainant would have been entitled to payment of the minimum severance amount under the Employment Standards Act.

Addressing damages for injury to dignity, feelings and self-respect, the Tribunal noted that the highest award from the Tribunal for such damages to date has been $75,000. Finding that the impact of the respondents’ discriminatory conduct was “severe”, the Tribunal held that $50,000 was an appropriate award.

Frankly, given the appalling nature of the respondents’ treatment of the complainant in this case, it is difficult to imagine why the Tribunal would not have awarded the complainant at the very highest end of the range of damages for injury to dignity. The Tribunal found that the complainant was treated as a possession, repeatedly sexually assaulted, isolated, intimidated, and deliberately exploited by the respondents. If nothing else, this decision provides a very high bar for the type of severe misconduct which will justify an award of damages in the range of $50,000.

While the circumstances of this case are uncommon, the more general tip employers should take from this decision is to ensure that they seek advice from Canadian employment counsel before bringing employees into the country. Failure to comply with immigration requirements, employment standards and other related workplace laws can lead to numerous headaches which can be avoided with proper planning.