Discrimination in the Workplace: Choice of Forum

Since 2008 a claim for a breach of the Ontario Human Rights Code (“Code”) can be advanced as a civil cause of action if the pleading discloses a reasonable cause of action that does not arise solely from a breach of the Code. For example, a claim for discrimination in the workplace is not limited to being heard by the Human Rights Tribunal of Ontario (the “Tribunal”) if the employee also has a wrongful dismissal or tort claim against his or her former employer. The employee can bring the claim for damages for breach of the Code as part of a civil action before the Court. The availability of two different forums to resolve qualifying human rights claims raises the question of which forum, the Tribunal or the Court, is the better choice for any given fact scenario. 

In 2015 two key human rights decisions provided an insight into this choice. Both decisions considered very similar fact scenarios – extremely vulnerable workers who had been sexually harassed and assaulted in the workplace.  One decision was decided by the Tribunal, the other by the Court. The decision of the Tribunal, O.P.T. v. Presteve Foods Ltd., 2015 HRTO 675, gained prominence because of the Tribunal’s high general damages awards of $150,000 and $50,000, respectively, to two sisters who were sexually assaulted by their employer. In contrast, in the lesser known civil decision, Silvera v Olympia Jewellery Corporation, 2015 ONSC 3760, a former jewelry store employee was awarded $297,000 in damages as a result of her sexual assault and racial and gender-based harassment at work. The victim’s daughter was also awarded $15,000 under a Family Law Act (“FLA”) claim in the latter case.

While the Tribunal and Court considered similar fact scenarios in these cases, the different structures of their damages awards reflect the distinctive legal analyses undertaken by each trier of fact. The two decisions are therefore instructive to human rights practitioners of the importance of forum selection for qualifying discrimination cases. The decision in Olympia suggests that greater damages awards may be available to those who pursue this civil route.

These two decisions also reflect the availability of significant damages awards for victims of workplace sexual assault and are timely given the recent series of high-profile complaints in the news and the Liberal government’s proposed legislation to enhance employers’ duties to investigate sexual harassment claims.

(i) O.P.T. v Presteve Foods Ltd. (“Presteve”)

In Presteve, the Tribunal considered the application of two sisters from Mexico who were working in Ontario under the temporary foreign workers program. The sisters were subjected to unwanted sexual solicitations, harassment, and assaults by Joe Pratas, the personal respondent and owner of the corporate respondent.

Pratas frequently took the sisters out to dinner, expressed his love for them, and either touched them in a sexual manner or forced them to perform sexual acts on him. Their sexual assaults ranged from being touched over their clothing at work, to being forcibly penetrated on a number of occasions.

Both applicants felt compelled to obey Pratas and did not report his assaults because he threatened to terminate their employment and send them back to Mexico, a threat that he ultimately made good on in 2008. An expert witness offered opinion evidence regarding the vulnerability of female migrant workers, citing, for example, that Pratas had confiscated the sisters’ passports, work permits and healthcare documents upon their arrival in Canada.

The Tribunal found Pratas to have “engaged in a persistent and ongoing pattern of sexual solicitations and advances” towards both applicants during their employment contrary to section 7(3)(a) of the Human Rights Code (the “Code”). He was also found to have sexually harassed both applicants, in violation of section 7(2) of the Code, and to have created a poisoned work environment contrary to section 5(1). Finally, Pratas’ attempts to control the whereabouts of the applicants were found to constitute discrimination on the basis of sex contrary to section 5(1) of the Code.

The Tribunal acknowledged two criteria in quantifying damages for injury to dignity, feelings, and self-respect: the objective seriousness of the conduct, and the effect on the applicant who experienced the discrimination. Pratas’ behaviour was found to be “unprecedented” and warranted a “very significant award” of compensation. Emphasizing the applicants’ vulnerability as migrant workers, he awarded $150,000 to one sister and $50,000 to the other as compensation for the injury to their dignity, feelings, and self-respect. Pratas, the “directing mind” of the corporate respondent, was held to be jointly and severally liable.

Pursuant to s. 45.2(1).3 of the Code, the corporate respondent was also ordered to provide any workers hired through the temporary foreign workers program with human rights training in their native language for the next three years.

(ii) Silvera v Olympia Jewellry Corporation (“Olympia”)

In Olympia, Glustein J. considered the default judgment motion of a Jamaican immigrant and single mother who had a history of childhood sexual abuse. She claimed damages against both her employer and her supervisor, Mr. Morris, for damages arising from her wrongful dismissal, a series of sexual assaults, and sexual and racial harassment.

Morris’ abuse of the plaintiff began with making inappropriate and derogatory racial comments and leaving demeaning emails on her desk and escalated to repeated incidents of sexual assault. He began insisting that the plaintiff stay late to work alone with him after the closing of the store, when he would routinely grope her. These assaults became so commonplace that the plaintiff insisted on wearing her coat at all times on the job.

The plaintiff felt trapped in her position at the corporate defendant, as she was financially dependent on the job to support her daughter and herself. She believed that she could not report the assaults and harassment to anyone because Morris was her supervisor and the owner’s brother. A clinic psychologist testified as an expert witness, recounting the plaintiff’s particular vulnerability and adverse reaction to the assaults given her history of sexual abuse and mental health issues.
Ultimately, the plaintiff was terminated from her employment for requiring time off for emergency dental surgery, despite the fact that she provided three doctors’ notes with respect to the surgery.

Justice Glustein applied a tort analysis and found that Morris had engaged in several acts of battery, as he had “intentionally inflicted force” on the plaintiff. He found that Morris had breached his fiduciary duty to the plaintiff by exercising his financial power over her. Finally, Morris was found to be liable under the Occupiers’ Liability Act, as he did not take care to ensure that the plaintiff was reasonably safe while on the premises. Given the escalating nature of Morris’ assaults of the plaintiff, the Court fixed general damages at $90,000, inclusive of aggravated damages. Punitive damages were also awarded in the amount of $10,000 for Morris’ “particularly blameworthy” conduct towards the vulnerable plaintiff.

Continuing to apply a tort analysis, Glustein J. awarded the plaintiff damages for her loss of income to date in the amount of $57,869. He awarded $42,750 for future therapy, as well as $33,924 in damages for loss of earning capacity over the coming three years, when the plaintiff would hopefully be well enough to return to full-time employment.

Morris was also held to be liable under the Code for breaching the plaintiff’s rights to equal treatment with respect to employment without discrimination because of race or sex (section 5(1)); to freedom from harassment in the workplace because of race (section 5(2)); and to freedom from harassment in the workplace because of sex (section 7(2)). Glustein J. fixed general damages at $30,000 for the humiliation, hurt feelings, loss of self-respect, dignity, and confidence by the plaintiff, the experience of victimization, her vulnerability, and the seriousness of the offensive treatment.

The corporate defendant was also held vicariously liable for the acts of Morris, as Morris was acting as an “operating mind” of the store at the time of the misconduct.

The corporate defendant was also held to have wrongfully terminated the plaintiff’s employment in bad faith and Glustein J. awarded the plaintiff three months’ reasonable notice in the amount of $7,475.50, as well as $15,000 in moral damages and $10,000 in punitive damages.

The plaintiff’s daughter was awarded $15,000 under the FLA for the loss of care, guidance, and companionship that she suffered following her mother’s mistreatment by the defendants.

(iii) The Implications of Presteve and Olympia

Presteve and Olympia send a strong message to employers that sexual assault and harassment in the workplace can be extremely costly. Both cases highlight the need to consider the various characteristics of women, such as their family or immigration status, that may make them particularly vulnerable to sexual harassment or assault. Both the Tribunal in Presteve and the Court in Olympia recognized the structural power imbalances that made the complainants dependent on their jobs and less likely to report their assaults, a vulnerability, and helplessness that made the consequences of their employers’ assaults acuter.

The Tribunal in Presteve demonstrated its willingness to exceed its typically modest awards and issue a large general damage award. While the Tribunal’s record $150,000 general damage award caught the attention of human rights practitioners, the fact is that the award is less than the $155,000 in general damages awarded by the Court in Olympia. Had the plaintiff in Olympia initiated an application to the Tribunal, her daughter (also a plaintiff) would have been required to start a separate legal proceeding if she intended to pursue her claim under the FLA. Given that the Tribunal cannot award punitive damages or legal costs and typically does not award damages for lost future earning capacity and future therapeutic treatment (all of which were awarded in Olympia), it would appear that civil actions should be given serious consideration in situations where an alleged breach of the Code involves factually complex or serious acts of misconduct.

Thanks to Kristen Pennington who co-wrote this article