Human Rights Tribunal Awards $150,000 in General Damages for Sexual Harassment
Two sisters who had come to Ontario from Mexico to work at Presteve Foods on temporary work visas were awarded $150,000.00 and $50,000.00 respectively by the Human Rights Tribunal of Ontario in O.P.T. v. Presteve Foods Ltd., 2015 HRTO 67. The award of $150,000.00 is by far the largest general damage awarded ever awarded by the Tribunal (the previous high-water mark was $50,000.00)
Presteve Foods’ owner, Jose Pratas, invited the first sister on dates and forced her to perform sexual acts on him by threatening to send her back to Mexico if she refused. The second sister claimed that Pratas sexually propositioned her and touched her breasts and slapped her buttocks.
Vice Chair Mark Hart found that Pratas engaged in “a pattern of persistent and unwanted sexual solicitations and advances and sexual harassment” in the workplace. He justified the award for $150,000.00 as follows:
In my view, the amount of compensation for injury to dignity, feelings and self-respect requested on behalf of this applicant is not unreasonable and is justified, given the unprecedented seriousness of the personal respondent’s conduct in this case, the particular vulnerability of O.P.T. as a migrant worker, and O.P.T.’s personal circumstances and the impact of the conduct on her. Accordingly, in my view, an award of compensation for injury to dignity, feelings and self-respect in the amount of $150,000 as requested on behalf of O.P.T. is appropriate.
The Tribunal has been criticized in the past for its relatively small general damage awards. General damage awards for employees who have been terminated from their employment in breach of the Human Rights Code generally range from $10,000.00 to $25,000.00. This reality, when combined with the fact that the Tribunal lacks the power to award payment of legal costs, has meant that applicants’ victories may appear to be hollow when the time, effort, cost and risk of pursuing a human rights application is weighed against the resulting award of damages.
In contrast, Ontario juries have shown themselves willing to order payment of six-figure punitive damage awards when responding to employers who have acted horribly (but whose conduct still falls short of Pratas’ behaviour). An employee who has experienced the type sexual harassment and assault suffered by the applicants in Presteve Foods may reach the conclusion that the better option is to claim human rights damages as part of a wrongful dismissal action. The employee could then ask a jury of her peers to award her a significant general damage award (potentially much greater than $150,000.00). In addition, the employee can ask the court to order payment of her legal costs.