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Sending a signal to harassment perpetrators and employers alike

Wongful dismissalIn Silvera v Olympia Jewellery Corporation, the court awarded over $300,000 in damages for wrongful dismissal, sexual and racial harassment and sexual assault to an employee.

After a life of hardship, Michelle Silvera had begun to turn her life around. Originally from Jamaica, Michelle did not live with her mother or stepfather until she immigrated to Canada at the age of five. In her childhood and teenage years, she was sexually abused by her stepfather and was the victim of emotional and physical abuse at the hands of both parents, forcing her to leave home at age sixteen. When Michelle was twenty-nine, she was hospitalized for depression and suicidal thoughts after she disclosed the sexual abuse to her mother, who later accused her of attempting to “steal” her stepfather. Upon her discharge, Michelle was diagnosed with major depression and substance abuse and marijuana smoking. In her thirties, after suffering a minor stroke, Michelle was determined to make a better life for herself and her daughter, Aleisha.

In August 2008, Michelle began employment at Olympia as a receptionist/assistant administrator. Olympia, whose office had only eight to ten employees, manufactured and sold jewellery in Toronto. Her boss, Morris Blazik (“Morris”), was in charge of operations and Michelle’s direct supervisor. Michelle enjoyed her work at the outset and felt she was continuing to grow as a person.

But unfortunately this content was temporary. Within a year of her employment, Michelle noticed that Morris would make racial comments and use derogatory language when describing people. About one year into her employment, Morris would routinely ask Michelle to stay late, waiting until the end of the day to give her work. In Fall 2009, Morris grabbed Michelle’s breasts after asking her to try on a newly-designed pendant. Michelle jumped back and told Morris “No”, after which he profusely apologized and promised it would not happen again. After this incident, Morris began showering Michelle with inappropriate attention such as buying her gifts. A few months after the first incident, Morris sexually assaulted Michelle again when her grabbed her buttocks to which she again responded “No”. Following this second assault, Morris continued to single-out Michelle, showing her pictures of naked women, sending racist emails and making racist jokes. In February 2010, Morris cornered Michelle in her work space and began to give her an uninvited message while putting his hands down the front of her shirt. Morris only stopped when Michelle told him others could come out and see, despite her protesting “no” throughout the whole assault.

On February 23, 2010, Michelle had an emergency tooth extraction and required a few days off work. A few days afterwards she was diagnosed with dry socket. After returning to work on March 8, 2010, Michelle was told to wait downstairs until she was called up. Michelle waited almost four hours before being told by Morris’ wife that she could speak to Morris. Morris accused Michelle of lying and sent her home pending more information from the doctor, despite Michelle providing doctor notes. When Michelle called to follow-up on March 12th, Morris informed her Olympia terminated her on March 10th and the letter was in her mailbox. The termination letter stated that Michelle’s termination was due to her prolonged absence from work, unsuccessful efforts to establish contact and completely indifferent predisposition to coming into the office to discuss her return to work.

Effects of Morris’ conduct on Michelle

Before and after her termination, Morris’ conduct had a profound effect on Michelle’s mental health, causing her significant pain and suffering. Her memories of her childhood abuse returned, which sparked feelings of guilt, shame and self-blame. She was unable to look for work because of her psychological condition and had difficulty interacting with older men. Michelle’s relationship with her daughter deteriorated and eventually Aleisha stopped making efforts to engage with Michelle, who had become completely despondent. Michelle began to drink on a regular basis and used alcohol to numb her pain. Expert evidence established that Michelle suffered from significant symptoms of post-traumatic stress disorder, tested high for depression and anxiety and alcohol abuse in sustained remission. The expert, however, also gave evidence that treatment was likely to show benefits.

The court’s findings

Michelle sued Morris and Olympia for wrongful dismissal by Olympia and for battery, sexual harassment, racial harassment and sexual assault arising from Morris’ conduct while Michelle worked at Olympia.

Using the framework in KT v Vranich (2011 ONSC 683), the court found both Olympia and Morris liable for damages arising out of Morris’ conduct. Morris engaged in several acts of battery, had a fiduciary relationship with Michelle and furthermore failed to ensure she would be safe while on the premises pursuant to the Occupiers’ Liability Act. Morris had also breached Michelle’s rights under the Human Rights Code as to equal treatment in employment with respect to race or sex and freedom from harassment in the workplace. Olympia as an employer, was vicariously liable for Morris’ conduct. Olympia had also wrongfully dismissed Michelle from her employment.

Damages

As in Vranich, Justice Glustein found Michelle was entitled to general, aggravated and punitive damages arising from Morris’ conduct. In the decision, the court concluded that Morris’ failure to comply with his apology and escalated assaults at work constituted aggravating factors which continued to affect Michelle. Punitive damages were also awarded as the court found that Morris’ conduct amounted to “high handed, taking advantage of” someone who was trying to support their daughter as a single mother. Morris’ actions were methodical, requiring a strong need for deterrence. Michelle was furthermore entitled to notice of dismissal, as her termination was without cause. The court awarded over $312,000 in total under the following categories:

  1. General damages were fixed at $90,000, inclusive of aggravated damages;
  2. Punitive damages were fixed at $10,000;
  3. Human Rights Code damages were assessed at $30,000;
  4. Future therapy costs were set as per the expert’s recommendation at $42,750;
  5. Loss of earning capacity fixed at $33,924.75;
  6. Three months’ notice totalling $7,475.50;
  7. Aggravated damages of $15,000 for the manner of dismissal;
  8. Punitive damages totalling $10,000 for the manner of dismissal;
  9. Lost past income equalling $57,869.13; and
  10. A subrogated OHIP claim of $37.18.

Michelle’s daughter, Aleisha, also successfully claimed $15,000 in damages under the Family Law Act for loss if care, guidance and companionship.

Takeaways

Unfortunately, harassment in the workplace is an all-too-common employment issue. While in this case the employer was a small business, large companies are not immune to these problems either. In April 2015, for example, our blog discussed a report published about Jian Ghomeshi’s actions and found that CBC failed to protect its employees from workplace harassment, which you can read about here.

Ontario courts are rightly increasing their protection of employees from harassment and assault in the workplace. This case serves as a strong deterrent to employers and employees who do not comprehend or acknowledge the severe implications of their actions.

Another cautionary note to observe in this case is the importance of having proper legal counsel who can advocate for your party. In this case, the employer chose not to appear in court and consequently, the court struck their statement of defence. Had the employer been at trial to argue its case, Michelle and Aleisha may not have received such substantial compensation.

As an employer, it is absolutely crucial to develop, implement, enforce and update your company’s harassment policies to ensure your firm is taking proper steps to protect employees in the workplace.

By: Marty Rabinovitch and Alycia Kacala (Summer Law Student)

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Devry Smith Frank LLP

Employment and labour lawyers at Devry Smith Frank LLP
Devry Smith Frank LLP (DSF) is the largest full service law firm in Toronto outside of the downtown core. They offer a broad range of legal services to individual, business and corporate clients in most areas of corporate and personal law. Their firm’s employment law group covers a broad spectrum of HR law, including employment and labour law, occupational health & safety, human rights, workers’ compensation and much more.Lawyers at Devry Smith Frank LLP lead by Marty Rabinovitch B.A.H., LL.B. will be covering issues surrounding employment and labour law and human rights on First Reference Talks. They also provide training, seminars and conferences on the above topics. Read more .
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