June 1, 2015
The Ontario Human Rights Tribunal (the “Tribunal”) has recently awarded an unprecedented $150,000 to a migrant worker as compensation for injury to her dignity, feelings and self-respect.
The applicant, referred to as OPT, had come to Ontario from Mexico as a temporary foreign worker to work in the fish processing plant. OPT alleged that during the course of her employment she was subjected to unwanted sexual propositions, advances, and which culminated in several sexual assaults. She testified that she had felt compelled to submit to the sexual advances and eventually to the sexual acts under threat that she would be sent back to Mexico if she refused.
The Tribunal found that OPT had been subjected to a pattern of persistent and unwanted sexual advances, facilitated by the owner’s ability to confer, grant or deny her continued employment, and thus her continued status as a temporary foreign worker in Canada. As a result, the Tribunal found several breaches of the Human Rights Code, including s. 5(1) (discrimination because of sex in respect of employment), and s. 7 (sexual harassment).
On the question of remedy, the unprecedented seriousness of the conduct and OPT’s particular vulnerability as a migrant worker were held to justify a significant award. The Tribunal awarded OPT $150,000 – three times the highest amount previously awarded for injury to dignity in similar circumstances.
As the individual respondent was the owner and principle of the corporation that employed OPT at the time of the violations, and as he was found to have engaged in the impugned conduct in the course of his employment, the Tribunal held that the corporation was jointly and severally liable for the majority of the individual respondent’s Code violations.
With this decision, the Tribunal appears to have set a new ceiling for remedies in the context of serious sexual harassment, at least where there is evidence that the applicant is particularly vulnerable. When considered in light of the recent Tribunal decision in Fair v. Hamilton-Wentworth District School Board – in which the Applicant was awarded reinstatement and nine years of back wages – the Tribunal is clearly trending towards a much broader use of its nearly limitless remedial powers.
If you have any questions about this topic or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.
For more information on new developments in Workplace Law, please refer to our website at: http://www.mathewsdinsdale.com/news-events/in-a-flash.
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