Earlier this year, the Ontario Human Rights Tribunal (“HRTO”) awarded record damages for sexual misconduct in favour of two female temporary foreign workers in the O.P.T. v Presteve Foods Ltd. decision (the “Presteve Decision” [2015 HRTO 675]). In May 2015, the HRTO awarded damages of $150,000 and $50,000 to each woman respectively against their former employer, Jose Pratas (“Pratas”), and his fish processing company, Presteve Foods Ltd.(“Presteve”). Damages were awarded to the two workers as a result of the sexual harassment and sexual assault they suffered at the hands of Pratas.

Prior Human Rights Tribunal awards

Prior to this decision, HRTO awards have typically ranged from $500 to $15,000. While the HRTO had previously said that there was no maximum damage award for injury to dignity, feelings and self-respect, there was an unofficial upper limit for general damages, between $25,000 and $40,000, typically awarded for especially egregious misconduct.

Until the Presteve Decision, the highest amount ever awarded in Canada for “injury to dignity, feelings and self-respect” was $75,000 in the British Columbia Human Rights Tribunal decision, Kelly v University of British Columbia (No. 4). That award was recently set aside on judicial review by the British Columbia Supreme Court.

The Presteve Decision has drastically changed the landscape of HRTO damage awards in Ontario, more than tripling the highest damage awards in Ontario and more than doubling the highest damage awards nationally.

The Presteve Decision

The shocking facts of this case spurred the HRTO’s high damage award. The complainants were sisters who came to Canada from Mexico under the Government of Canada's Temporary Foreign Worker Program (“TFWP”) in order to work for Presteve. In their complaints, the sisters made serious allegations of sexual misconduct by Pratas, including but not limited to, sexual harassment, unwanted touching, and sexual assault including forced fellatio and forced sexual intercourse on multiple occasions.

Both sisters testified that they felt forced to allow this misconduct because Pratas frequently threatened to send them back to Mexico if they refused. Given the fact that both were in Canada under the TFWP with closed work permits that allowed them to work for only one designated employer, the sisters were trapped at Presteve.

In reaching its decision, the HRTO focused on the complainants’ extreme vulnerability as female migrant workers living in Canada and Pratas’ power over them. 

Lessons for employers

This decision provides several lessons that all employers should be aware of:

  • Employers are liable for the sexual misconduct committed by their officers, officials, and employees if the misconduct occurs in the course of employment.
  • “In the course of employment” does not require the misconduct to occur at the workplace, so long as it is related or associated in some way with the employment.
  • Employers should ensure that all employees, officials, and officers are properly trained on harassment and workplace violence policies.
  • Human Rights Tribunals are prepared to order large awards against employers where circumstances warrant.