General damage awards before May 22, 2015
Since 2008, adjudicators appointed under the Ontario Human Rights Code have had the power to award unlimited general damages as compensation for injury to dignity, feelings and self-respect. Since that time however, very few adjudicators have awarded more than $ 40.000 and most awards are under $ 20.000.
May 22, 2015 decision
That is until now. In a Ontario Human Rights Tribunal decision released on May 22, 2015, adjudicator Mark Hart ordered a corporation and its owner to pay a temporary foreign worker $ 150 000 in general damages because the owner sexually harassed/assaulted the worker.
The adjudicator found that the owner told the worker to perform oral sex on him on three occasions, that he engaged in sexual intercourse with her on three occasions and that the worker acquiesced because she was afraid that he would send her back to Mexico.
A particularly vulnerable employee
Adjudicator Hart made his decision after 16 hearing dates. When awarding the employee $ 150 000 in general damages he took the following facts into account:
(The employee) was 30 years old when she came to Canada. Her husband had been tragically killed, and she was left to support her two children. As a temporary foreign worker in Canada, (the employee) was put in the position of being totally reliant upon her employer. As Dr. Preibisch (an expert) testified, temporary foreign worker programs in Canada operate on the basis of closed work permits, which only entitle a migrant worker to employment with one designated employer. While theoretically possible to transfer employment to another employer while in Canada, there are significant barriers that make this practically impossible or at least very difficult. As a result, a migrant worker like (the employee) tends to be reliant upon the employment relationship with the designated employer to a degree that is not experienced by Canadian workers. Migrant workers like (the employee) live under the ever-present threat of having their designated employer decide to end the employment relationship, for which they require no reason and for which there is no appeal or review, thus being “repatriated” to their home country and thereby losing the significant economic and financial advantages of their Canadian employment upon which they and their families depend. In (the employee)’s case, the personal respondent was repeatedly explicit about this threat to send her back to Mexico if she did not comply with his demands and had demonstrated that he was capable of doing so by repatriating other Mexican women.”
Lessons to be learned
This case may turn out to be an outlier because the facts involved are so extreme and disturbing.
Alternatively, it may start a trend toward higher general damage awards in sexual harassment/assault cases.
It is interesting to note that the Ontario Human Rights Code (the “Code”) prohibits sexual harassment but it does not explicitly refer to sexual assault.
As a result of this $ 150 000 damage award, employees who have been sexually assaulted at work may start filing applications under the Code instead of commencing actions in the courts for civil sexual assault.
To file an application under the Code an employee does not need a lawyer and if the employee loses her case then the employee will not be ordered to pay any of the employer’s legal costs. The Code therefore provides better access to justice for vulnerable, low paid employees who have been sexually assaulted.