New Brunswick is about to join the bandwagon by adding “family status” as a protected ground in its Human Rights Act. All other jurisdictions in Canada have already made this move.read more
Unprecedented Damage Award for Violation of Human Rights
Early this year, the Ontario Human Rights Tribunal chartered into new territory when it awarded an employee $150,000 in damages for injury to dignity, feelings and self-respect that were caused by the employer’s egregious violation of the employee’s human rights.
The case, O.P.T. v. Presteve Foods Ltd., 2015 HRTO 675, involved two sisters, O.P.T. and M.P.T., who came from Mexico as temporary foreign workers to work for the employer. The sisters alleged that the owner and principal operator of the employer continually and repeatedly sexually assaulted them. The allegations of sexual assault included: slapping their buttocks; touching their breasts over their clothing; sexually propositioning the sisters; forcibly hugging and kissing O.P.T.; forcing O.P.T. to perform fellatio on multiple occasions; and forcing O.P.T to have sex with him on multiple occasions. All of the above were done on the threat of dismissal. The sisters were particularly vulnerable to such a threat because their work permits were restricted to their employment with the employer. The employer provided housing for its temporary foreign workers. As a result, the immediate consequences of a dismissal were that the sisters would have no place to live and would be precluded from working in Canada.
No one from the employer testified at the hearing. The Tribunal accepted the sisters’ allegations and concluded that such conduct constituted serious violations of the Ontario Human Rights Code.
O.P.T was awarded $150,000 in general damages for injury to dignity, feelings and self-respect. Her sister, M.P.T. was awarded $50,000 in general damages for injury to dignity, feelings and self-respect. The Tribunal explained that, although previous damage awards had not exceeded $50,000, the severity of the conduct in question warranted an unprecedented amount of damages. The sisters, as temporary foreign workers, were vulnerable and totally reliant on their employer.
The Tribunal further ordered that the employer was required to provide human rights information and training to any temporary foreign worker that was hired for the next three (3) years. The information and training had to be provided in the native tongue of the temporary foreign workers.
What This Means for Employers
The decision demonstrates that human rights tribunals are prepared to award significant damages for egregious violations of human rights which are perpetrated on particularly vulnerable applicants.
As demonstrated by this case, an employer can be held liable for serious misconduct, such as sexual harassment, committed by its officers, official and employees if the impugned conduct occurs in the course of employment. The term “in the course of employment” does not require that the misconduct fall within the four corners of the job but rather includes conduct that is in some way related or associated with the employment.