Discouraging Sexual Harassment Through Human Rights

Damages before the Human Rights Tribunal have historically been modest, especially when compared to similar cases before the Superior Court of Justice.

The system was transformed considerably in 2006 after Bill 107, Human Rights Code Amendment Act, which allowed the Tribunal to award higher damages starting in 2008, by removing the $10,000 limit on compensatory awards for mental anguish. Under the current provisions in s. 45.2 of the Code, the Tribunal may make any order to compensate the applicant for loss arising out of the infringement, which includes compensation for injury to dignity, feelings and self-respect.

Despite these changes, the Tribunal still had challenges deterring discrimination in the workplace. The Report Of The Ontario Human Rights Review 2012 commented in several places on how the damages awarded by the Tribunal was too low,

Low general damages awards create a number of problems. First, they send a message that human rights and breaches of the Code are of limited importance. The fundamental denial of dignity occasioned by a breach of the Code and the resulting injury to feelings and self-respect call for meaningful compensation. The Tribunal has acknowledged that damages awards that are too low trivialize the social importance of the Code by creating a licence fee to discriminate.

Second, low damages awards impose a barrier on access to justice at the Tribunal. Access to justice is denied when it is not economically feasible or worthwhile to pursue one’s rights through the human rights system. Applicants will be deterred from pursuing valid and worthwhile human rights claims when they can predict from the outset that it will cost more to pursue their human rights application than they are likely to receive in compensation, even if they are successful before the Tribunal.

Finally, there is a risk that potential applicants may choose to pursue their human rights claims before the courts, where possible, in order to obtain a greater award of damages in the civil context. One of the purposes of the Tribunal is to provide an efficient, inexpensive and expert forum for adjudicating human rights issues. Low damage awards may have the unintended and undesirable effect of discouraging claims before the Tribunal and causing claimants to pursue civil remedies before the courts, where such a forum is available to them. In keeping with the Tribunal’s purpose, higher compensatory awards will encourage applicants to pursue their human rights claims before the Tribunal, as it will be efficient and economically worthwhile to do so…

Many respondents, particularly individuals and organizations with limited resources, will not share the perspective that monetary damages awards at the Tribunal are routinely too low. In the consultation process, a number of experienced respondent counsel disagreed that Tribunal awards were out of step with court awards for general damages. They reminded me that, for most respondents, loss of reputation and inability to recoup legal fees were of greater concern than the actual monetary award paid to the applicant. It was also suggested that higher damages may also invite a more aggressive defence strategy at mediations and hearings or encourage judicial reviews. However, having considered respondents’ perspectives on this issue, I remain of the view that the current low damage awards will result in the Tribunal losing credibility as a serious forum in which issues of fundamental importance are resolved.

The Report notes that the Tribunal had not increased compensation as anticipated since 2008, and recommended that the Tribunal should reconsider its approach to general damages to provide awards that are “significantly increased.”

The 2012 decision of Fair v. Hamilton-Wentworth District School Board was released before the Report. The Tribunal provided a significant award soon after the report, of $30,000 as compensation for the injury to her dignity, feelings and self-respect, and a whopping $419,283.89 for the entire period from the time when her employment was terminated until almost a decade later, when she was reinstated. The decision was unsuccessfully appealed and affirmed by the Court of Appeal.

Since the Report, civil court actions in Ontario involving human rights have also seen an upward trend in damages, including in Wilson v. Solis Mexican Foods Inc., Partridge v. Botony Dental Corporation, Silvera v Olympia Jewellery Corporation, Strudwick v. Applied Consumer & Clinical Evaluations Inc.

A significant award was also provided by the Tribunal in 2015 in O.P.T. v. Presteve Foods Ltd., which reviewed some of the cases awarding higher damages, and provided and $150,000 and $50,000 respectively to two employees for compensation for injury to her dignity, feelings and self-respect. Significant in this case is that it involved sexual harassment, sexual solicitations or advances and reprisal.

There is a strong public interest and persuasive policy reasons for deterring such conduct, and doing so through the Tribunal in an expeditious and cost-effective manner. Tribunal damages have consequently seen a notable increase in GM v. X Tattoo Parlour, AB v. Joe Singer Shoes Limited, and AM v. Kellock, especially where there is discrimination that involves sexual conduct.

The Tribunal recently released a new decision in NK v. Botuik, awarding an employee $170,000 for an employee who experienced serious and long-term workplace sexual harassment, including an assault by her supervisor. The employee was coerced into the relationship when on probation and as a single mother, and feared losing her job, especially when the employer threatened to reduce her hours when she attempted to end the relationship,

[274] In this matter, I find that the respondent’s conduct toward the applicant amounted to egregious sexual harassment and solicitation, and an exceptionally damaging affront to the applicant’s dignity. The evidence presented to this effect was abundant, clear and compelling… From the very outset of her employment, the respondent targeted and “groomed” her, with an intention to have sex with her.

The Tribunal noted that the employee experienced a devastating and traumatic impact, that directly impacted her sense of self-worth, shame and self-esteem,

[276] The harassment the applicant suffered at the hands of the respondent also significantly contributed to the cessation of her employment. On the whole, it is difficult to imagine conduct that would have been more malfeasant or objectively serious than that which the applicant was subjected to.

Although the employer conducted an investigation, they discovered the relationship far too late to effectively intervene. The investigation did not make any reference to workplace policies being violated, and even suggested the relationship to be consensual. The Tribunal disregarded this conclusion, in light of the evidence before it.

This decision, and similar ones like it, will continue to send a strong message that workplace relationships should be strongly discouraged generally, and that inappropriate ones that involve power dynamics and any form of coercion may result in significant exposure to employers.