Sexual harassment damages see gains

2 recent cases in Ontario highlight evolving approach
By Sarah Dobson
|Canadian HR Reporter|Last Updated: 08/07/2015

The two cases were extreme, to say the least. 


One involved a receptionist who suffered through several incidents of sexual assault and harassment by her employer and was subsequently fired after recovering from dental surgery. Michelle Silvera was recently awarded damages of $206,000 (including general and aggravated, punitive, breach of the human rights code and loss of future income) by the Ontario Superior Court of Justice in June, along with $90,000 for wrongful termination from Olympia Jewellery.


The other involved two temporary foreign workers who suffered through several instances of sexual harassment, sexual solicitations and advances — creating a sexually poisoned work environment — and reprisal, while working for Presteve Foods. In May, the Human Rights Tribunal of Ontario separately awarded them $150,000 and $50,000 as compensation for injury to their dignity, feelings and self-respect.


Considering the large amounts, will we start to see larger awards handed out for sexual harassment?


“It may be part of a wider trend or it may be those specific circumstances,” said Paul Willetts, employment lawyer at Vey Willetts in Ottawa. “The facts that were presented in those cases precipitated the results that occurred so I think, to a certain extent, that’s why you saw a larger damages award.”


However, there is case law that said the tribunal would be willing to award more, said Willetts, who has seen, generally, increases from $15,000 to the range of $20,000 to $30,000.


“With anything in the common law where it builds on cases over time, I think there’s been a growing confidence or willingness to award increasing amounts. As to whether that’s a reflection of inflation or whatever it may be, I’m not sure that it’s that, but there has definitely been a willingness by tribunals to award more.”


The Presteve case is more likely to be a one-off, said Frank Portman, an associate at Stringer Management Lawyers in Toronto, adding the $150,000 general damages doubled the previous high for any sort of discrimination before Ontario’s tribunal. 


And the tribunal went out of its way to point out how exceptional the facts of the case were, being the worst it had ever seen, he said.


“We’ll see whether or not that becomes a trend,” he said. “I know that, in general, human rights damages have been climbing. For a long time, there was sort of this informal bracket, you’d get between $25,000 and $40,000 in general damages for the worst kind of offences.”


The “Pinto report” in 2012, looking at Ontario’s human rights system, was also was a factor in saying awards were not high enough, said Portman.


“I didn’t see anything in Presteve that suggested this should be as high as the damages go, that ‘We’re only awarding this because this is such an exceptional factual situation,’ so I think that there’s certainly the potential for that to act more as magnet for the upper end of human rights damages, rather than act as more of a cap.”


Another possible reason for the rising damages is a societal shift around harassment, he said.


“As a society, we’re starting to understand more about some of the long-term, pernicious effects that this sort of behaviour can have.”


With the Presteve case, the facts were so extreme, they brought on that type of quantum, said Doug MacLeod, principal of MacLeod Law Firm in Toronto. The decision also listed prior damage awards and “there are a lot in the $30 to $40,000 range that…. most people would describe them as quite egregious,” he said. “If people are now being told the high water mark is $150,000 not $30 or $40 (000), then people may look more seriously at actually filing an application.”


It’s hard to say if that means more employers will face more claims but it’ll be interesting to see what other adjudicators do with sexual harassment and sexual assault, said MacLeod.


Tribunal versus court

The Silvera case is a pretty important decision because now employees have to decide whether they are going to the human rights tribunal, where they can go for free, or go to court and get potentially much higher damages, said MacLeod.


“If you look at what happened in the $150,000 case versus the $300,000 case, the $150,000 case was much, much, much worse sexual assault and even though it was the highest damage award by three times at the commission, it was still half of the other one,” he said. 


“So… lawyers who would have gone under the code in the past, under sexual harassment — this $300,000 case will give them pause and maybe think, ‘Well, maybe we should go the court route instead.’”


More and more of these sexual harassment and general human rights-related termination cases are being litigated in the courts, said Portman. The tribunal has a much more circumscribed ability to award damages, so it’s interesting to see this crossover, he said. 


“There’s a number of these claims here, punitive damages awards the human rights tribunal can’t grant, family law act damages, and these are things that… you wouldn’t be seeing handed out in these kinds of cases just because of the simple fact the tribunal lacked the jurisdiction to do so.”


A provision allowing the court to award general damages has existed since 2008, said Portman.


“But, up until 2013, there actually hadn’t been a reported case in which these damages were awarded and now, in the last year-and-a-half or so, we’ve seen four or five cases; they’ve all been wrongful dismissals in which there’s been an aspect of human rights and the courts have been awarding these general damages.”


Either way, employers are going to have to spend time speaking to the individuals involved and building and defending their case, said Willetts.


“The reality for the employer is going to be similar, regardless of whether it’s in civil court or a human rights tribunal.”


Lessons for employers

There’s not an employer in the province that would condone this sort of harassment, said Portman.


“But this really does underline the importance of having, especially if you are in a situation where you have (vulnerable) workers... it’s important for employers to have strong policies in place and to make sure that their employees know how to access those programs so that these situations can get resolved before they get to this extreme stage.”


It’s also important for employers to have a proper complaint process, so people know where they can go if they’ve been harassed, said MacLeod.


“It’s one thing to have a statement saying, ‘We don’t tolerate (this) and people will be disciplined,’ but unless you give them the name of a person they can complain to, and as long as you tell them that their complaint will be taken seriously and… the information will be kept confidential… there will be no reprisal for bringing a complaint forward, they’re going to be less likely to do so.” 


And once an employer is faced with these kind of charges, the legal system will be looking at how it responded, according to Portman.


“Were they prepared for this situation or did they have this vulnerable employee and they just brushed her aside without really giving her full vindication through their internal processes?”


It’s also a good idea for the employer to actually show up in court or before the tribunal. In Silvera, the employer failed to do so, so there were no witnesses and there was no cross-examination of the plaintiff or her doctor, said MacLeod.


“The fact the employer didn’t show up, that’s a big factor as to why the quantum was so high.”

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