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A recent ruling by the Ontario Human Rights Tribunal (the “Tribunal”) has set a new high-water mark for damages awards against employers.

Employers that are found to have allowed their employees to suffer from sexual discrimination, including sexual harassment, in the workplace face potentially significant damage awards for “mental distress”. In the past, such damage awards were generally capped at $10,000. However, this cap was removed in 2008 and, since then, damages awards have increased, often falling in the range of $20,000 to $30,000 (and sometimes more).

In O.P.T. v. Presteve Foods Ltd., 2015 HRTO 675 (CanLII), the Tribunal considered the case of two foreign temporary workers, which the Tribunal found had experienced a “persistent and ongoing pattern of sexual solicitations and advances” by Presteve’s owner, who threatened to have the workers sent back to their homes in Mexico if they did not submit to his advances. One of the applicants engaged in sexual acts with the owner on multiple occasions, under threat of being deported.

The Tribunal also found that this behaviour created a sexually poisoned work environment, meeting the test recently set out by the Ontario Court of Appeal in General Motors of Canada Ltd. v. Johnson, 2013 ONCA 502 (CanLII):

[…] There must be evidence that, to the objective reasonable bystander, would support the conclusion that a poisoned workplace environment had been created. […]

Moreover, except for particularly egregious, stand-alone incidents, a poisoned workplace is not created, as a matter of law, unless serious wrongful behaviour sufficient to create a hostile or intolerable work environment is persistent or repeated.

Having concluded that the conduct of Presteve’s owner had violated the Code on numerous occasions, and that both he and the corporation were properly liable to pay damages to the applicants for injuries to their dignity, feelings and self-respect, the Tribunal set about determining what level of damages would be appropriate in the circumstances.

The Tribunal found that the seriousness of Presteve’s owner’s conduct was “unprecedented in terms of this Tribunal’s previous decisions”. Furthermore, the Tribunal held that the “particular vulnerability” of the applicants as migrant workers also necessitated an award of significant damages.

With respect to the applicant who was required to perform sexual acts under threat by the employer, the Tribunal awarded $150,000, its largest ever quantum of damages for dignity, feelings and self-respect. The Tribunal awarded $50,000 to the second applicant, finding that although she was not subjected to conduct that was as egregious, it nonetheless fell on the higher end of similar human rights tribunal awards in the past.

While the extremely high damages awards in this case are based on facts that are unique to the Presteve Foods case, it serves as a warning to employers of the significant damages they may face in the event of a successful human rights complaint. Further, it remains to be seen what effect, if any, the Tribunal’s willingness to award such a large amount will have on future damages calculations. We will keep you informed of any developments as they occur.

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