Immigrant worker subjected to 'egregious sexual assaults', paid $5 per hour
“Employers will be held vicariously responsible for discrimination arising from the acts or omissions of their employees and/or agents, so it's not acceptable to ignore harassment or sexual harassment claims. Employers have legal obligations to prevent sexual harassment, discrimination, and workplace bullying under the Human Rights Code and Occupational Health and Safety Act.”
So says Paulette Haynes, principal of Haynes Law Firm in Toronto, after the Ontario Human Rights Tribunal ordered an employer and its owner to pay $180,000 for the owner’s sexual harassment and sexual assault of a worker who was new to Canada.
The worker came to Canada in March 2019 as a refugee from Iran, where she had suffered several traumatic events such as forced marriage and abuse.
Sexual harassment at work
Shortly after arriving, the worker applied for an esthetician position at Ray Daniel Salon and Spa in Toronto. The salon’s owner was of the same background and spoke her native language of Farsi, and he hired her to start work on April 3. He paid the worker $5 per hour in cash, as the worker didn’t know about the minimum wage. The owner also told her that no one would hire her because she didn’t have status in Canada – she had applied for refugee protection and a work permit, but both were pending.
According to the worker, about two weeks into her employment, she was in the storage room when the owner came up to her and touched her shoulders, lower body, and buttocks. He kissed the worker and, after initially freezing up, she pushed him away.
After that, the owner frequently made unwanted sexual comments to the worker, to which she didn’t respond.
Around April 23, the owner asked the worker to leave work and help him buy nail supplies. He picked her up but instead of going for supplies he drove to a secluded parking lot. According to the worker, the owner raped her in his car. Afterwards, he dropped her off and told her she didn’t need to return to work that day.
The worker told her friend of the rape, but she didn’t tell anyone else because she was afraid she would be deported for working without a work permit.
Sexual assault at work
About two weeks later, on May 5, the worker reported to work early in the morning without many employees around. She was in the salon’s kitchen when the owner grabbed her from behind, pulled down her pants, and raped her. Afterwards, he took her to another salon location and told her to work there for the rest of the day.
The worker alleged a third sexual assault in late May. Around the same time, the owner forcibly cut her hair as a sample for customers. He bleached her hair but burned her neck with the bleach and hair straightener as she struggled with him.
According to the worker, the owner repeatedly told her that if she went to the police, he would tell them she had stolen a phone and get her deported. By the end of May, the owner told the worker to stop coming to work. She had one month’s wages outstanding.
The worker filed a human rights application alleging discrimination with respect to employment because of sex, sexual harassment, sexual solicitations or advances, and citizenship, along with reprisal. She claimed $250,000 in damages for injury to dignity, feelings, and self-respect.
The owner filed a Small Claims Court action against the worker seeking $35,000 for harming his personal and business reputations with her human rights application. The owner also contacted the worker’s psychologist in Iran - who she had been seeing since before coming to Canada - for a letter of support. The psychologist refused and the worker added these to her application as additional reprisals.
Worker’s account credible
The worker’s friend testified that, on the day of the first rape, the worker came to their house with blood stains on her dress and was crying. The friend also reported seeing the owner harassing the worker at the salon and, on the day of the forced haircut, they saw the burns on her neck.
The salon didn’t participate in the hearing, so the tribunal moved forward with a default hearing with testimony from the worker and her witnesses – her friend and her psychologist.
“Strictly speaking on adjudication principles, the tribunal can only make a determination based on the evidence before it,” says Haynes. “The [employer] had the opportunity, presumably, to attend and they chose not to, so the decision is based the evidence put before the tribunal.”
The tribunal found the worker to be “consistent and forthright” in her version of events, particularly in her honesty with her background and the impact of the discrimination on her. It also found the worker’s reasons for not reporting the assaults to be consistent with how survivors of sexual assault feel.
The tribunal also found the worker’s friend to be forthright and credible, as was the psychologist, who described the worker’s previous trauma and the effects of the owner’s actions on her.
Given the credibility of the worker’s evidence and the lack of opposing evidence, the tribunal determined that the events happened as the worker described.
‘Egregious sexual assaults’
The tribunal noted that the code provides individuals with the right to be free from harassment and discrimination in the course of employment. The code also prohibits sexual solicitation or advances from someone in a position of power who knows or ought to have known that it’s unwelcome, said the tribunal in determining that the salon owner’s actions were a violation of the worker’s human rights and the “egregious sexual assaults” were unwanted sexual advances.
Although the first sexual assault happened outside the workplace, it was still considered in the course of employment, says Haynes.
“The worker thought that when she was in a car with the [owner] it was for a work-related errand, so it was interesting that the tribunal therefore extended the definition of workplace in the code to include the [owner]’s car where the first rape occurred,” she says.
The tribunal also found that the sexual harassment and advances were adverse treatment in which the worker’s sex was a factor, and the worker was subjected to a poisoned work environment for which the corporate entity owning the salon was liable. In addition, the forced haircut was an attempt to control the worker’s decisions about her body and her sex was a factor in that adverse treatment, the tribunal said.
The worker was also discriminated against on the basis of another protected ground – her citizenship – when the salon paid her an illegal wage rate and told her that no one would hire her because she didn’t have status in Canada.
“The employer was preying upon [the worker’s] precarious immigration status to pay her this low wage, and the tribunal said that paying someone lower a lower wage due to their protected characteristics is a form of prima facie discrimination,” says Haynes.
Reprisal for human rights complaint
The tribunal also found that the owner’s threats to report the worker to police was a reprisal connected to the worker’s citizenship, and the Small Claims Court action was a reprisal because it related directly to the allegations in the human rights application, the tribunal said.
In assessing damages, the tribunal noted that the owner’s conduct was “egregious sexual harassment and solicitation” that had a devastating impact on the worker. The worker provided evidence of medical conditions from 2023, but there was no medical opinion that linked these issues with the events of 2019, so these were not considered for damages.
However, the tribunal accepted the psychologist’s opinion that the assault significantly affected the worker’s emotional state and she didn’t face the trauma from it until later, leading to anxiety and poor sleep patterns.
Ray Daniel Salon, as the corporate defendant, and the individual owner were ordered to pay, jointly and severally, $180,000 to the worker as damages for injury to her dignity, feelings and self-respect.
“Because the [owner] was also the sole proprietor and directing mind of the corporation, it was clear for the tribunal that the corporate defendant was obviously aware of the poisoned work environment, and therefore the corporate defendant was vicariously liable as well,” says Haynes.
Zero tolerance for harassment
The discrimination and assaults were particularly egregious in this case, but it still serves as a reminder to employers that they should maintain a zero-tolerance stance on sexual harassment, says Haynes.
“The code imposes a duty on employers to ensure that workers are working in a poison-free environment, and to take steps to ensure that sexual harassment is not taking place,” she says. “And once employers learn of sexual harassment, they are obliged to take immediate steps to remedy the situation and, if applicable, consider disciplinary action and further preventive steps.”
See Ray Daniel Salon & Spa and Reza Khosravi, 2024 HRTO 179.
