By Holly Gomes, Lawyer
From the termination of the popular CBC radio host Jian Ghomeshi to the Hydro One employee terminated for his off duty behaviour of sexually heckling a news reporter, the issue of sexual harassment has been a hot topic in Canada and specifically in employment law over the last year. This issue is again in the spotlight following the Human Rights Tribunal of Ontario (“Tribunal”) awarding the largest general damages award in its history in the recent landmark decision, O.P.T. v. Presteve Foods Ltd. (“Presteve”).
In Presteve, the Applicants, M.P.T. and O.P.T., were sisters who had come to Canada from Mexico under the Government of Canada’s Temporary Foreign Worker Program to work as labourers for the corporate respondent, Presteve Foods Ltd, a company which operates a fish processing plant in Wheatly, Ontario. The personal respondent, Joe Pratas, was the owner and principal of Presteve at that time. In their complaint, they alleged that during the course of their employment they were subjected to unwarranted sexual solicitations and advances by the owner of the company, Jose Pratas, which included:
– Compelling O.P.T. to go out to dinner with him and sexually harassing her in the car under threat that he would send her back to Mexico if she did not comply with his demands;
– Threatening M.P.T. that she could be sent back to Mexico if she went to the doctor’s with anyone but him and sexually harassing her in the car by touching her and telling her that having sexual intercourse with him would make her feel better;
– Sexually propositioning O.P.T. and M.P.T. on multiple occasions;
– Inappropriately touching both O.P.T. and M.P.T. on multiple occasions;
– Forcing O.P.T. to perform fellatio on multiple occasions; and,
– Forcing O.P.T. to engage in sexual intercourse on multiple occasions.
After a 16 day hearing, the Tribunal found that Pratas had violated the Human Rights Code(“Code”) and sexually harassed O.P.T. and M.P.T. in the workplace by engaging in a persistent and ongoing pattern of sexual solicitations and advances and that he knew or reasonably ought to have known that these sexual solicitations and advances were unwelcome.
The Tribunal also found that the discriminatory conduct that occurred outside of the workplace, such as the inappropriate touching in the car, had sufficient connection to O.P.T. and M.P.T.’s employment to constitute harassing conduct in the workplace within the purview of theCode. In making this finding, the Tribunal relied upon the fact that:
1) Pratas was the owner and principal of the company and was in a position of authority over O.P.T. and M.P.T., and
2) his sexually harassing conduct detrimentally effected the sisters’ work environment and occurred under threat of adverse job-related consequences.
The Tribunal also found that Pratas’ conduct created a poisoned work environment.
Given the facts of the case, the Tribunal found that a significant award of compensation for the injury to dignity, feelings and self-respect of O.P.T. and M.P.T. was justified in the circumstances and awarded O.P.T. $150,000.00 in general damages and M.P.T. $50,000.00 in general damages.
The Tribunal found both Pratas and corporate respondent, Presteve Foods Ltd. to be jointly and severally liable for the violations of the Code. Under the vicarious liability provisions of theCode an employer can be responsible for certain discriminatory conduct of an employee that occurs during the course of his or her employment even if it did not know of the conduct or, did not condone it, and even if it actively discouraged that conduct. Although the vicarious liability provisions of the Code do not apply to sexual harassment, since Pratas was the owner, and therefore directing mind of the corporation, the Tribunal found the corporate respondent to be equally liable for the sexually harassing actions of Pratas as well.
Up until Presteve, the Tribunal had provided relatively modest awards of damages in sexual harassment cases to successful complainants, with a majority of general damage awards ranging from $5,000.00 to $20,000.00. Although there is no maximum damage award for injury to dignity, feelings and self-respect, the high water mark in previous cases has hovered in the range of $40-50,000.00 for the most egregious violations. In granting this substantially greater damage award in Presteve, the Tribunal found that O.P.T. and M.P.T.’s particular vulnerability as migrant workers and the unprecedented seriousness of Pratas’ conduct weighed in favour of an award over and above what has been awarded in previous cases.