New High for Ontario Human Rights Sexual Harassment
Ontario Human Rights Tribunal Sets New High for Human Rights Sexual Harassment
The HRTO has set a new high water mark for compensatory damages, awarding the sum of $200,000 in a decision released in January of 2018.1
The applicant was employed with the company for some 29 years and resided in an apartment also owned by a related company. She was the sole supporter of a disabled son.
She was required to submit to various forms of sexual demands, including sexual intercourse, over a period of 18 years. Following her report of this conduct to the police, she faced eviction. The criminal charges were dismissed. The award was made against the owner of the business personally and against the company.
Prior High Water Mark
The highest award, prior to the most recent decision, had been $150,0002 to one complainant and $50,000 to a second, also in particularly unattractive fact situations.
Both complainants were migrant workers from Mexico in Canada on temporary work permits and threatened with termination and hence deportation, failing each one’s willingness to comply with the owner’s demand for sexual favours. The women faced not only loss of employment, but loss of a residence and the right to remain in Canada.
The tribunal found the conduct to be unprecedented. The second victim, 22 years old, was required to leave Canada and return to Mexico.
These fact situations, while certainly dramatic and unusual, nonetheless reflect the disparity between awards for human rights violations in Canadian jurisdictions. Most jurisdictions do not provide a statutory cap, yet the damage awards in many administrative tribunals have tended to be relatively modest. This pattern is clearly changing.
In British Columbia, a young Filipino mother who was hired as a housekeeper and required to perform sexual acts “at the whim” of her employer was awarded $50,0003. The highest award made to date has been $75,0004, but this was not a sexual harassment case. The Court of Appeal noted that the tribunal should not be bound by what had been considered as a historic “range” of damage awards and that is was not “patently unreasonable” for the tribunal to award a sum in excess of a prior maximum.
Other jurisdictions do set a statutory maximum. Had the complainant in Singer Shoes resided in Saskatchewan, her maximum recovery, including punitive damages, would be $20,000.
Had she worked for a federally regulated business, her case would be capped at $40,000, inclusive of the maximum of $20,000 for compensatory damages and a further $20,000 ceiling for “special compensation” for conduct which is wilful or reckless. Sexual harassment is routinely considered as such conduct.
There remains an evident difference in awards across other jurisdictions.
The New Brunswick Tribunal had ordered the sum of $15,0005, an inordinately high sum in this jurisdiction, to the male complainant who was subjected to severe harassment by a male colleague6. This is likely the high end of the expected range.
In Manitoba, an award of $15,000 for general damages and $5,000 for punitive damages7 was made in favour of a woman who was subject to physical contact by the owner of the business which caused severe emotional harm, including “anxiety, depression, flashbacks and panic attacks which continued for several years”.
The panel noted the Ontario law which then suggested a range of $12,000 to $50,000. It observed that awards in other provinces have been higher than that of Manitoba. Nothing was done to correct that. The facts in this case were said to support an award in the high end of the range8.
Until the decision of the Alberta tribunal awarding $25,0009, the rough maximum was $10,000. The Alberta Court of Appeal noted in this case that prior generally damage awards “have been low, arguably nominal”. This was not a case of sexual harassment but it does set the bell weather for the future of such awards.10
Ideally, there should not be such a vivid disparity between jurisdictions, particularly one cemented by statute.
For this reason, complainants in such jurisdictions may well be advised to seek compensation by the traditional tort remedies.
1AB v Singer Shoes and Paul Singer
2Tribunal (Hart) in O.P.T.and M.P.T vPresteve Foods Ltd.and Pratas
3A young Filipino mother who was hired as a housekeeper and required to perform sexual acts “at the whim” of her employer was awarded $50,0003.
4Kelly v. University of British Columbia,2013 BCHRT 302 (CanLII) (adverse treatment due to a mental disability).
5SWE v BK
6The conduct was nothing but exceptional. The most serious offence was that the complainant woke up to discover the respondent committing fellatio upon him.
7The 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.
8Emslie v Doholoco
9As upheld by the Alberta Court of Appeal Walsh v Mobil Oil. There were actually two awards of $10,000 and $25,000.
10The 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.