As we have noted in previous updates, the size of general damages awarded by human rights tribunals has trended sharply higher in recent years (see our update on this phenomenon here). A decision from the Human Rights Tribunal of Ontario has accelerated that increase, nearly doubling the previous Canadian record.
The facts in OPT v Presteve Foods Ltd are particularly egregious.
The complainants were two sisters from Mexico who were brought to Canada to work at a fish processing plant as temporary foreign workers. During their employment, they would stay at a house operated by the corporate employer, subject to strict house rules including curfew and restrictions on outside visitors. Upon arriving in Canada, the principal of their employer began a campaign of aggressive sexual harassment against them both, culminating in several sexual assaults upon the older sister and the deportation of the younger sister following her rebuff of the principal’s sexual advances.
Ultimately, the principal pleaded guilty to a criminal charge of simple assault, although the principal maintained that the assault was non-sexual in nature. The principal did not testify before the Tribunal.
The Tribunal held in favour of the sisters, finding that the principal of the employer separated the older sister from her fellow workers and repeatedly propositioned her under the threat of deportation. The Tribunal also found that the principal had engaged in a pattern of sexual solicitations and advances towards the younger sister. Although the Tribunal could not find that the younger sister’s deportation was a reprisal, it found that it was related to the inappropriate sexual conduct and was therefore discrimination under the Code.
The only damages claimed were general damages. As the alleged perpetrator was the principal of the corporate employer, the corporate employer was also held liable for the conduct.
The Tribunal called the conduct of the principal towards the older sister “unprecedented” before the Tribunal. The Tribunal awarded the older sister an equally unprecedented $150,000 in general damages, citing the particular vulnerability of temporary foreign workers and the profound impact of the misconduct upon the complainant.
The Tribunal found that the mistreatment suffered by the younger sister merited an award of $50,000 in general damages.
Obviously the facts of this case are extreme and shocking. Nonetheless, this case still involves an award of double the previous record in general damages – $75,000 by the British Columbia Human Rights Tribunal.
Although overshadowed by the larger award, the $50,000 awarded to the younger sister is also significant, as with the exception of the deportation, the sexual harassment she experienced is more consistent with other sexual harassment cases. Whether this becomes a new baseline for general damages in sexual harassment cases remains to be seen.
Ultimately, this decision underscores the need for employers to have strong anti-sexual harassment training, policies and monitoring processes. While in this case the harasser was the principal of the company, making it almost impossible to avoid liability, if such conduct were committed by a lower-level employee, an effective human resources policy could not only help protect the employer against liability, it could identify and address the problem before it escalated.
