In a recent decision,1 the Human Rights Tribunal of Ontario (the Tribunal) awarded unprecedented damages for injury to dignity, feelings and self-respect totalling approximately $220,000 to two temporary foreign workers who were repeatedly sexually harassed. In addition to setting a new record for such damages in the context of human rights proceedings, this case also makes important determinations on a number of other issues of potential concern to employers facing liability under the Ontario Human Rights Code (the Code).2

Background

This case involved multiple incidents of sexual harassment over several years. The applicants were two sisters, O.P.T. and M.P.T., who came from Mexico as temporary foreign workers to work at Presteve Foods Ltd. Jose Pratas, the personal respondent, was the owner and principal operator of Presteve, the corporate respondent that owned the plant.

The applicants alleged Pratas and Presteve had violated the Code, including when Pratas forced O.P.T. to have sex with him under threat of dismissal. The applicants were particularly vulnerable to such a threat because their work permits were restricted to their employment with Presteve. Furthermore, Presteve provided housing for its temporary foreign workers. As such, the immediate consequences of dismissal were that the applicants would have no place to live and would be precluded from working in Canada.

Pratas did not testify, nor did anyone from Presteve. The Tribunal concluded that, because Pratas failed to testify, it could draw the adverse inference that his testimony would not have helped his case. While Pratas’ counsel argued he should be excused from testifying on grounds of age and ill health, the Tribunal refused to accept this as a valid excuse without any supporting medical evidence.

The Tribunal accepted the applicants’ allegations and that such conduct constituted serious violations of theCode.

Remedy

The applicants sought a number of remedies, including $250,000 ($150,000 for O.P.T and $100,000 for M.P.T) for injury to their dignity, feelings and self-respect.

The Tribunal surveyed other decisions in which damages for injury to dignity, feelings and self-respect were awarded in amounts as high as $50,000.3

Here, however, the severity of the conduct in question was found to be “unprecedented” relative to the Tribunal’s prior decisions. O.P.T. was accordingly awarded $150,000 and M.P.T. was awarded $50,000, each with interest. The Tribunal concluded that a significant award of damages was appropriate because of the applicants’ vulnerability as migrant workers who were totally reliant on their employer. Thus, the award was proportionate to those in the long list of cases that the Tribunal canvassed to calibrate the damage award.

The Tribunal also ordered that Presteve provide any workers hired under the temporary foreign worker program with human rights information and training in their native language for a period of three years.

The Tribunal held Pratas and Presteve jointly and severally liable for the monetary damages. Under theCode, a corporation is deemed to be liable for the actions of employees taken in the course of their employment. The Tribunal held that such actions need not be within the “four squares” of the perpetrator’s job description to be performed “in the course of his or her employment.” Furthermore, when the perpetrator is a “directing mind” of the corporate respondent, as in this case, this provides a basis for imposing equal liability on the corporate respondent for the actions of its employee.

Delay

The Tribunal declined to dismiss the application for delay, despite the fact that the application was filed more than one year after the last incident of discrimination or harassment. The applicants claimed that the delay resulted from their lack of knowledge of their rights under the Code, which the Tribunal has repeatedly held is insufficient to demonstrate that a delay was incurred in good faith.

However, in this case, the Tribunal considered that the applicants had limited ability to communicate in English and no knowledge of Ontario’s legal processes – traits closely connected to the Code-protected characteristics of ancestry and place of origin. The Tribunal held that “good faith” can be found where aCode-protected ground is closely connected to the reason for the delay.

Implications

In 2012, the Pinto Report4 recommended that the Tribunal “significantly increase” the monetary range of general damage awards when discrimination has been proven. Since that time, such awards have been slowly increasing. This decision demonstrates what the Tribunal is prepared to award in egregious Code violations perpetrated on particularly vulnerable applicants, and may have the effect of encouraging higher awards in future cases.

In addition, the decision demonstrates that the Tribunal will take an expansive view of what conduct is “in the course of … employment.” As such, employers are reminded that they may be liable for employees’ Codeviolations, even when such conduct is unauthorized and outside of the “four squares” of any job description, particularly when an employee is a directing mind of the employer.

Furthermore, failure to testify (or perhaps call the evidence of a key witness) is at a party’s peril. An adverse inference could well be drawn that the witness’ evidence would not have been helpful to the party’s case.

Thanks to Joe Bricker, summer student, for his assistance in preparing this legal update.