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167This relief is not limited to sexual harassment cases but rather applies to all human rights cases. Back to book Page ‣
168This is the wording of the Ontario statute. The specific words change from jurisdiction to jurisdiction but the meaning is the same. Back to book Page ‣
169As noted this is the case only in Ontario and has been the subject of recent contrary decisions. Back to book Page ‣
170A “poisoned work environment” is the language used in human rights cases for what at common law, the nearest equivalent would be a constructive dismissal. Back to book Page ‣
171Often there is also a defined power to order any offensive behaviour cease. Back to book Page ‣
172A Discrimination in employment under government contracts26. (1)It shall be deemed to be a condition of every contract entered into by or on behalf of the Crown or any agency thereof and of every subcontract entered into in the performance thereof that no right under section 5 will be infringed in the course of performing the contract. R.S.O. 1990, c. H.19, s. 26 (1).Idem: government grants and loans (2) It shall be deemed to be a condition of every grant, contribution, loan or guarantee made by or on behalf of the Crown or any agency thereof that no right under section 5 will be infringed in the course of carrying out the purposes for which the grant, contribution, loan or guarantee was made. R.S.O. 1990, c. H.19, s. 26 (2).Sanction (3) Where an infringement of a right under section 5 is found by the Tribunal upon a complaint and constitutes a breach of a condition under this section, the breach of condition is sufficient grounds for cancellation of the contract, grant, contribution, loan or guarantee and refusal to enter into any further contract with or make any further grant, contribution, loan or guarantee to the same person. R.S.O. 1990, c. H.19, s. 26 (3); 2002, c. 18, Sched. C, s. 5. Back to book Page ‣
173Québec (Commission des droits de la personne et des droits de la jeunesse) v. Centre maraîcher Eugène Guinois JR inc., 2005 CanLII 11754 (QC TDP). This was a complaint based on race. Each complainant was awarded $5,000 in punitive damages. Back to book Page ‣
174 Such awards were made in the sums of $5,000 and $2,500 in Savage v 984329 NWT Ltd et al. Back to book Page ‣
17531(4) Saskatchewan Human Rights Act. The word “punitive” damages does not appear in the Act. Back to book Page ‣
176This is certainly the case for “special compensation” under the federal code. Back to book Page ‣
177Peter A. Cumming, now Mr. Justice Cumming of the Ontario Superior Court, in Cameron v. Nel-Gor Castle Nursing Home and Nelson (1984), 5 C.H.R.R. D/2170, referencing his prior decision of Rosanna Torres v. Royalty Kitchenware Limited (1982), 3 C.H.R.R. D/858 at D/869) Back to book Page ‣
178As above; and The Divisional Court in Scott v Foster Wheeler8 CHRR D/4179 Back to book Page ‣
179Constance Backhouse, sitting as the Board of Inquiry in Naraine; Naraine was upheld by the Divisional Court Leave to appeal to the Court of Appeal was granted on an unrelated ground and the remedy decision was amended on an unrelated ground; The Divisional Court in February of 2001, released its decision in Ontario Human Rights Commission v Shelter Corporation (leave to appeal to the Court of Appeal denied) Back to book Page ‣
182Wilson v Solis Mexican Foods, Grace J. of the Ontario Superior Court Back to book Page ‣
183 Wilson quoting from ADGA above Back to book Page ‣
185 Seguin v. Great Blue Heron Charity Casino, 2009HRTO940(CanLII), 2009 HRTO 940 at para. 16 Back to book Page ‣
186 Sanford v. Koop, 2005HRTO53(CanLII), 2005 HRTO 53 (CanLII) at paras. 34-38, as below Back to book Page ‣
188 The Federal Court of Appeal in Chopra v CanadaBack to book Page ‣
189 The Alberta Court of Appeal Walsh v Mobil Oil Back to book Page ‣
190 The Alberta Court of Appeal Walsh v Mobil Oil; Canada (Treasury Board) v Robichaud, 1987CanLII73 (SCC), [1987] 2 SCR 84. Back to book Page ‣
191The Tribunal had ordered the sums of $10,000 and $25,000 for the breaches of the human rights based on the Alberta statute which has no cap on the sum which may be awarded for compensatory damages. The Tribunal noted that ordinarily the sums awarded do not exceed $10,000 but the facts in question were exceptional and justified a higher award. Back to book Page ‣
192 As noted in MacTavish v PEI “We must be realistic and consider whether any award bears a reasonable relationship to other awards for similar discrimination”; To the same effect the New Brunswick Labour and Employment Board in Steeves v Woody’s Place quoted with approval from the Ontario Board of Inquiry that “At the same time, fairness requires that an award bear a reasonable relationship to awards made by earlier boards of inquiry.” Willis and David Anthony Phillips Properties (1987), 8 C.H.R.R. D/3847) Back to book Page ‣
193 The decision of the chambers judge, Madam Justice Romaine in Walsh v Mobil Back to book Page ‣
194 Much to the same effect in noting the parallel to tort awards is the decision of the Ontario Board of Inquiry in the 2001 case of Fuller v Daoud (DeGuire) Back to book Page ‣
195 There were two awards of $10,000 and $25,000. This was not a sexual harassment case. Back to book Page ‣
196Kearsley v St.Catharines by the Board of Inquiry, chaired by a former Supreme Court of Ontario Justice, Mr. Dennis O’Leary. Back to book Page ‣
198 This issue was still being debated as late as 2008, in ADGA and Lane Back to book Page ‣
199 Professor Cumming, then sitting as an ad hoc Board, defined “recklessly” as conduct, which is “such as to evince disregard of or indifference to its consequences, that is, the conduct is done with rashness or heedlessness; it is done wantonly”, without regard for the possible injurious impact on the complainant: Cameron v. NelGor Castle Nursing Home (1984), 5 C.H.R.R. D/2170, at D/2198. Back to book Page ‣
200 Board of Inquiry in Ketola v Value Propane (Garfield) Back to book Page ‣
201 These awards were essentially punitive in nature, as per the Divisional Court in ADGA and Lane. Back to book Page ‣
202 This is so also for awards of “special damages” under the Canadian Human Rights Act. It underscores the need for punitive damages for sexual harassment cases. Back to book Page ‣
203 Sanford v. Koop, 2005HRTO53(CanLII), 2005 HRTO 53 (CanLII); ADGA Group Consultants Inc. v. Lane, 2008CanLII 39605 (ON SCDC), 2008 CanLII 39605 (ON S.C.D.C.) at para. 152 Back to book Page ‣
204Hill-Leclair v. Booth, 2009HRTO1629(CanLII), 2009 HRTO 1629; G.G.v1489024andElias (Whist) Back to book Page ‣
205Torres v Royalty Kitchenware Ltd., (1982), 3 C.H.R.R. D/858 (Ont. Bd. Inq.) (Cummings), now Mr. Justice Cummings of the Ontario Superior Court. This decision has been universally accepted as the criteria for this award, although the sums awarded have increased. See Behm v. 6-4-1 Holdings and others, 2008 BCHRT 286 (CanLII); Soroka v. Dave’s Custom Metal Works Ltd. ,2010 BCHRT 239 (CanLII); Young v. Petres, 2011 BCHRT 38 (CanLII).Back to book Page ‣
206Sanford, at para. 34; also ADGA Group Consultants Inc. v. Lane, 2008CanLII 39605 (ON SCDC), 2008 CanLII 39605 (ON S.C.D.C.) at para. 152; Payotte v Alarm Guard Services (Dimovski) Back to book Page ‣
207This is the Wall test referenced previously. This is so for all human rights awards, not just sexual harassment. Back to book Page ‣
210The exceptions have been noted. In most cases, there should be a punitive aspect. Back to book Page ‣
211G.G. v 1489024andElias, (Whist) An award was made of $18,000 for injury to feelings, dignity and self-respect in addition to an award of $11,940 for lost wages. This effectively covered the applicant’s period of unemployment from June 11 2009 to November 27, 2009. Back to book Page ‣
212Cugliari v Clubine (Faughnan);Fuller v. Daoud (2001), 40 C.H.R.R. D/ 306 (Ont. Bd. Inq.). See the damage assessment narrative below. Back to book Page ‣
213Sands v Moneto Marketing HRTO; Smith v The Rovers Rest ; Vipond v. Ben Wicks Pub and Bistro [2013] HRTO 695. This should by no means be interpreted as a cap.Back to book Page ‣
214Garofalo v Cavalier Hair Stylists, a January 2013 decision of the Tribunal (Bhattacharjee) Back to book Page ‣
215Metcalfe v PapaJoe’s Pizza The sum of $8,000 was also awarded for mental anguish which was later reduced to $1,000 by the Divisional Court without reasons.Back to book Page ‣
216 Comments were made such as “you are a good looking person”, “nice legs”, “nice body”, which occurred every day or every other day.The comments became more rude, more abrupt, more often and more specific, such as “nice boobs” and that she should go into the back so he could suck on them. Other comments continued such as,“can I see your body?”, “can I touch your body?”, “can I kiss you?”, “How old was the oldest man that you have slept with”, “I’ll give you $100 to sleep with my son”. In July, 2001, Toufighjou asked her to take off all her clothes so that he could tell if her body was any good so that she could be a stripper. When she was driving Toufighjou home he started rubbing her arms telling her that her skin was soft asking for a goodbye kiss. When she arrived the next day, Toufighjou said, “where is my kiss?” On one occasion when she was cleaning the fire hoods and her shirt was untucked from her pants, she noticed that Toufighjou was looking up her shirt. She immediately got off the chair and said “why are you doing this?”.Back to book Page ‣
217Murchie v JB’s Mongolian Grill (Hendriks) The respondent was found to have “flicked” the complainant’s nipple. Back to book Page ‣
218It was found that Mr. Clubine met Ms. Cugliara at Centro’s restaurant. He talked to her at her table and asked her to join him at the bar, an invitation which she accepted. He then engaged her in discussions which included sexual banter and a sexual solicitation. Ms. Cugliara vomited in the washroom. They left the restaurant together and arrived at the parking lot where Mr. Clubine kissed her and touched her in sexual manner. The complainant testified that she pretended to enjoy this conduct. The Complainant’s evidence was that she pretended to enjoy the sexual touching, hoping that it would shortly end. Ultimately, she advised Mr. Clubine that she was ill and he desisted.I find that what is singularly lacking in the events as they transpired is any effort by Mr. Clubine to take appropriate steps to determine himself whether the statements he was making or the actions he took were unwelcome. The Complainant had previously tried to divert sexual conversations and rejected his sexual solicitations, but he persisted in engaging in a course of vexatious comment and conduct, related to the Complainant’s sex.Back to book Page ‣
220Payotte v Alarm Guard Services. A further $5,000 was awarded for failure to investigate. Back to book Page ‣
221Sandford v Koop (Gottheil) This was then considered a high side award.Back to book Page ‣
222In the same case an award was made for mental anguish of $10,000; The term “mental anguish” is used with specific reference to the former Ontario Code.Back to book Page ‣
223Also an award was made of $5,000 for mental anguish in Arias. Back to book Page ‣
226There was also a general reprisal finding.Back to book Page ‣
227Examples of behaviour of the offensive conduct were the pinning of Sunshine girl images throughout the office, placing sexually explicit paraphernalia on her desk, the personal respondent pulling down the complainant’s underwear, speaking words to the complainant and about her, such as “a nice pair of tits”, “ I would like to wrap my legs around her”, “ I will keep you warm at night because you have no man at home”, squeezed her buttock, rubbed her shoulder, traced with his hand over a run in her nylon. Back to book Page ‣
231Again in the above, there was an award made for $10,000 for mental anguish. Back to book Page ‣
233In this case, the complainant endured a persistent, unrelenting pattern of inappropriate comments and conduct, including sexual touching and one act of serious sexual aggression. The respondent pled guilty to criminal harassment and admitted in the course of the guilty plea that he engaged in inappropriate comments and touching on a daily basis. The complainant testified that she was humiliated, experienced significant stress, anxiety and depression, sought counselling to deal with the effects of the harassment, developed feelings of isolation and fear and an overall lack of self- confidence. The complainant also testified about how acutely vulnerable she felt as an aboriginal, single-mother with respect to both the experience of being harassed, and the limited choices she felt were available to her to combat the respondent’s behaviour. Back to book Page ‣
234M.K. v 1217993 Ontario Inc., operating as Wimpy’s Diner.It may be noted that no one appeared for the
respondents in the liability or remedy hearing. A reconsideration motion with counsel was not successful
 Back to book Page ‣
237This was due a poisoned work environment in Smith v Menzies Chrysler. Back to book Page ‣
239In this case, I have found that when alone in the house in Leamington with O.P.T., the personal respondent abused his position of power and authority over her to require her to perform fellatio on him on three occasions and to penetrate her with his penis on another three occasions. O.P.T. felt compelled to comply with the personal respondent’s demands on the basis of his threats to send her back to Mexico, when she needed her job in Canada in order to help support her two children.”Back to book Page ‣
240in Gill v. Grammy’s Place Restaurant & Bakery Ltd., 2001 BCHRT 33 Back to book Page ‣
241The British Columbia Human Rights Tribunal decision of McIntosh v Metro Aluminum Products Back to book Page ‣
243A defining moment was the award of $25,000 made in Dattv. MacDonald’s Restaurant (No. 3) 2007 BCHRT 324 due to adverse treatment due to a disability,Back to book Page ‣
244Harrison v. Nixon Safety Consulting and others (No. 3), 2008 BCHRT 462 (CanLII), the Tribunal awarded $15,000 for sexual harassment. In another harassment case, the Tribunal awarded $25,000;Ratzlaff v. Marpaul Construction Ltd. ,2010 BCHRT 13 (CanLII). In Senyk v. WFG Agency Network (No. 2), 2008 BCHRT 376 (CanLII), the Tribunal awarded $35,000 for injury to dignity, feelings and self-respect for the termination of employment Back to book Page ‣
245A young Filipino mother who was hired as a housekeeper and required to perform sexual acts “at the whim” of her employer was awarded $50,000 Back to book Page ‣
246Kelly v. University of British Columbia,2013 BCHRT 302 (CanLII). This award was based on a mental disability. The award was set aside on a judicial review application as “patently unreasonable” on first review, yet later restored by the Court of Appeal.An award of $35,000, then the highest award, in Senyk v WFG Agency Network(#2) in 2008. This was a case based on discrimination due to a physical and mental disability with respect to an employee of a long term history.Back to book Page ‣
248The facts disclosed a serious sexual assault. Ms. Ratzlaff opened the door to her motel room. Mr. Rondeau forced his way into the room. He grabbed her throat and kissed her aggressively, forcing his tongue into her mouth. She said that he then grabbed her breasts and tried to get his hands into her vagina. She kneed him in the thigh but he repeated his conduct.Back to book Page ‣
253As upheld by the Alberta Court of Appeal Walsh v Mobil Oil. There were actually two awards of $10,000 and $25,000.Back to book Page ‣
254The sum of $125,000 was awarded in the City of Calgary case but this was a unique case in which the arbitrator was empowered by mutual agreement to consider all remedies, including arbitral, human rights and tort. It is also illustrative of the difference between human rights and common law tort remedies.Back to book Page
255S. 34(1) Saskatchewan Human Rights Act Back to book Page ‣
256As noted below, Canada has a similar provision, supplemented by a further allowance of up to $20,000 for “special” damages.Back to book Page ‣
257It was increased to $10,000 in November of 2001. Prior to this date, it was $5,000.Back to book Page ‣
258Abu-Ghazaleh v JKT, Saskatchewan Human Rights Tribunal Back to book Page ‣
259Saskatchewan Board of Inquiry, Ratzlaff v. Dimas (1986), 7 C.H.R.R. D/3402 Back to book Page ‣
260Karlenzig v. Chris’ Holdings Ltd. (1991), 15 C.H.R.R. D/5. The legislated cap was then $5,000.Back to book Page ‣
261Shier v Edworthy Saskatchewan HRT. The statutory cap was then $10,000.Back to book Page ‣
262The Manitoba Code allows for punitive damages of up to $5,000 against an individual and up to $25,000 against a corporation. This order was made against the owner personally.Back to book Page ‣
264Garland v. Tackaberry (c.o.b. Grape & Grain), [2013] MHRBAD 5.Back to book Page ‣
268Québec (Commission des droits de la personne et des droits de la jeunesse) v. Centre maraîcher Eugène Guinois JR inc., 2005 CanLII 11754 (QC TDP). This was a complaint based on race. Each complainant was awarded $5,000 in punitive damages. Back to book Page ‣
271Davison v N.S. Construction Safety, upheld in the N.S. Court of Appeal although the CA specifically distanced itself from the comments on the need for medical evidence. It also set aside the punitive award of $7,000 for reprisal. Back to book Page ‣
273The conduct was nothing but exceptional. The most serious offence was that the complainant woke up to discover the respondent committing fellatio upon him. Back to book Page ‣
276The complainant was a 33 year old minister who was stalked by a member of the congregation. It had a devastating impact upon her life. The Presbytery did nothing to cause this conduct to cease. Back to book Page ‣
277It should also be noted a past income loss of $425,000 plus a pension sum was also awarded.Back to book Page ‣
278Lacosse and Dyck v. Childhood Discoveries Preschool, Board File No. 2012-03 Back to book Page ‣
280Savage v 984239 NWT Ltd. NWT Human Rights Adjudication Panel Back to book Page ‣
281Savage as above Back to book Page ‣
282S. 53(2)5 Canadian Human Rights Act Back to book Page ‣
283Prior to June 30, 1998, the total sum allowed to be ordered of compensatory and “special” compensation was $5,000. Conduct which transpired before this date was subject to this cap. Back to book Page ‣
284Berberi v Canada. Further issues arose which are not relevant to this issue, as noted in a subsequent hearing before the tribunal and the Federal Court, Trial Division. Back to book Page ‣