In May 2015, the Human Rights Tribunal of Ontario issued an unprecedented decision when it awarded two temporary foreign workers over $200,000 in damages for injury to dignity, feelings, and self-respect resulting from discrimination in employment.

Background

The case, O.P.T. v. Presteve Foods Ltd. (PDF), involved two female temporary foreign workers - O.P.T. and M.P.T. The two workers came to Ontario from Mexico to work for Presteve Foods Ltd. ("Presteve") at a fish processing plant. O.P.T. and M.P.T. alleged that during the course of their employment, the owner and principal of Presteve, Jose Pratas, subjected them to unwanted sexual solicitations and advances (including sexual assaults and touching), a sexually poisoned work environment and discrimination in respect of employment because of sex.

M.P.T. alleged that Mr. Pratas grabbed her on multiple occasions, touched her inappropriately and sexually propositioned her. She further alleged that when Mr. Pratas was driving her to a doctor's office, he asked her to have sex with him and touched her inappropriately. 

The allegations raised by O.P.T. were even more egregious. She alleged that Mr. Pratas forced her to go to dinner with him alone on several occasions. While in the car on the way to dinner, Mr. Pratas touched her inappropriately, forced her to put her hands into his pants, and kissed her without consent. O.P.T. further alleged that on multiple occasions Mr. Pratas demanded that she perform fellatio on him and threatened to send her back to Mexico if she did not comply. Finally, O.P.T. alleged that Mr. Pratas forced her to have sex with him three times. For fear of losing her job, O.P.T. complied with Mr. Pratas' demands. 

Decision

After hearing extensive evidence, the Tribunal concluded that Mr. Pratas had engaged in a persistent and ongoing pattern of sexual solicitation and sexual harassment towards O.P.T. and M.P.T. during their period of employment with Presteve. As owner and principal of Presteve, Mr. Pratas was a person in a position to confer, grant or deny a benefit or advancement to both women and he used that power by threatening to send them back to Mexico if they refused his advances. The Tribunal further concluded that Mr. Pratas knew or ought reasonably to have known that these sexual solicitations and advances were unwelcome. Thus, his conduct constituted sexual harassment for the purposes of the Human Rights Code (the "Code") and it created a sexually poisoned work environment.

With respect to the allegations relating to Mr. Pratas' sexual harassment of O.P.T. and M.P.T. in his car, the Tribunal concluded that although these acts technically occurred outside of the workplace, the acts were sufficiently connected to O.P.T.'s and M.P.T.'s employment to also constitute sexual harassment pursuant to the Code. More specifically, the Tribunal stated that the incidents detrimentally affected the work environment since both women were threatened with adverse job-related consequences if they did not comply with Mr. Pratas' demands. 

As a result of the discrimination O.P.T and M.P.T. endured during their employment with Presteve, the Tribunal awarded them $150,000 and $50,000, respectively, as damages for injury to their dignity, feelings, and self-respect. The Tribunal stated that these significant awards, plus interest, were warranted given the vulnerability of the women as migrant workers and in light of the particularly abhorrent nature of Mr. Pratas' conduct.

The Tribunal also concluded that Presteve was jointly and severally liable for the damages pursuant to section 46.3 of the Code, which deems a corporate respondent liable for the actions taken its by officers, officials or employees in the course of employment. The Tribunal noted that for actions to fall within "the course of employment", it is not necessary for the actions to fall within the four squares of a job description. Rather, it is sufficient if the actions are in some way related to or associated with the employment. In this case, Mr. Pratas' position as owner and principal of Presteve gave him power and authority to engage in the behaviour that he directed towards O.P.T. and M.P.T. This was sufficient to trigger Presteve's liability.

Lessons for Employers

Although an employer will not automatically be liable for sexual harassment committed by one of its officers, officials or employees, an employer may be found liable if the individual's conduct occurs "in the course of employment".

Furthermore, although it is well established that the Tribunal's remedial powers are not to be exercised in a punitive manner, this case sends a strong message to employers - both in Ontario and in other jurisdictions across Canada - that employers who fail to properly address sexual harassment in the workplace risk incurring significant financial liability. In order to mitigate this risk, it is critical that employers have appropriate anti-harassment policies in place and provide comprehensive training on these policies to their workforces.