In A.B. v Joe Singer Shoes Limited, a retail employee alleged sexual harassment and assault by her employer who was also her landlord. In 1979, AB had immigrated to Canada from Thailand. She was a single mother. Her first job in Canada was working for Joe Singer, since deceased, at Joe Singer Shoes Limited (the “Store”). Joe Singer was the father of the personal respondent, Paul Singer (“Mr. Singer”).
After working at the Store for a few years, she moved into an apartment above it. Both the Store and the apartment were operated by Mr. Singer.
AB alleged that Mr. Singer had sexually harassed and assaulted her for several years in both the Store and her apartment. She further alleged that he “discriminated against her by making fun of her body, accent and English language skills, and by making derogatory comments about her place of origin”. In particular, she alleged that:
- Mr. Singer came into her apartment without knocking when her son was not there and assaulted her;
- he watched pornography in his office and told her to watch and learn from it so she could do the same things to him;
- he forced her to perform oral sex on him and engage in sexual intercourse;
- Mr. Singer routinely slapped her and other female employees on the buttocks;
- Mr. Singer told her that her front was indistinguishable from her back;
- he told her she had chicken or monkey feet because she was bow-legged;
- Mr. Singer told her she was going to taste the best food she had ever eaten at his birthday party, and told her that her people did not understand that it was gourmet food; and
- he referred to Thailand as a third world country.
In her evidence, AB provided details of her assaults, including remembering Mr. Singer’s smell, how her knees felt on the concrete floor, the feel of semen on her face and hands, and how she felt when he was on top of her.
In her Application, AB requested the following remedies:
- “general” damages for injury to dignity, feelings and self-respect in the sum of $200,000;
- lost wages in the sums of $5772 and $2964, respectively, for failing to return the applicant to work; ; and
- an order that Mr. Singer attend a mandatory human rights training program at his cost.
The HRTO acknowledged that this was a “he said, she said case” and assessed the credibility of both parties. Although AB had “documented and apparent issues with memory”, and in fact testified that she forgets many things, the HRTO concluded that she had been sexually harassed and assaulted both at work as well as in her apartment. The HRTO emphasized AB’s vulnerability and the fact that she was unable to leave the harassment and assault occurring in her workplace and in her home:
“The applicant was vulnerable given she had no family here, was single, lived above the store and English was not her first language. I find that Mr. Singer told the applicant she was stuck, that he had money and would get the best lawyers if she reported him while she would have to rely on community lawyers, and that she stayed because she felt she had no option.” (para 143)
Further, the HRTO found that Mr. Singer created a poisoned work environment for AB with his repeated comments about her body, skin colour, accent and country of origin, as well as sexual harassment, solicitation and advances.
As a result, the HRTO awarded her $200,000 in general damages for injury to dignity, feelings and self-respect. The HRTO awarded damages jointly and severally and on a global basis. However, the HRTO made no order with respect to lost wages since there was no evidence to allow the HRTO to consider the termination claim.
In awarding such a significant amount, the HRTO recognized that it should “consider both the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination”. Specifically, the HRTO considered the following factors:
- humiliation and hurt feelings experienced by the complainant;
- the complainant’s loss of self-respect, dignity, self-esteem and confidence;
- the experience of victimization;
- the vulnerability of the complainant; and
- the seriousness, frequency and duration of the offensive treatment.
Considering the above, the HRTO found that AB was “in a vulnerable position given that she was a single woman raising a son with a disability; that she needed to live in the same building where she worked, which allowed her to care for her son; and that she was an immigrant who felt, as she put it, stuck in the situation she was in. She endured not only harassment and sexual assaults, but also threats.” In addition, the HRTO noted the serious and lasting effect of the respondent’s conduct on AB, including the exacerbation of her anxiety and depression.
While HRTO damage awards have been increasing in recent years (see G.M. v X Tattoo Parlour and Doyle v Zochem Inc.), this is one of the highest amounts we have seen. Although the nature of the sexual harassment and assault in this case was particularly egregious, employers should take heed from this decision and be mindful that while human rights damages tend to be relatively modest, more egregious harassment and sexual harassment, particularly of vulnerable employees, will result in more significant liability.
Employers would be well-advised to implement strong anti-discrimination, harassment and workplace violence policies which include provisions regarding processes, investigations and training. As well, employers should make serious attempts to develop a workplace culture where harassment is not tolerated. For further details, read our Employer’s guide to workplace sexual harassment.
*This blog was co-authored by Nadia Zaman.