A recent decision of the Ontario Human Rights Tribunal has awarded a teenager employed as an unpaid intern at a tattoo parlour the sum of $75,000 in compensatory damages for sexual harassment.[1] There was no dispute that such an unpaid position still constituted employment for the purposes of the Human Rights Code.

The personal respondent had pleaded guilty to criminal charges related to the same conduct. The record of the proceedings and the guilty plea from the criminal trial was agreed to be used as the relevant evidence of wrongdoing for the human rights case.

The only issue was the amount of damages to be ordered as compensation for injured feelings. Of some note was that the owner of the tattoo parlour, his spouse and the victim’s parents were all good friends. The owner had actually borrowed money from the victim’s parents to open the business.

There was a clear violation of a position of trust, dealing with a vulnerable 15-year-old teenager working in her first position of employment. The sexually offensive conduct was infrequent, but involved inappropriate sexual touching and sexual solicitation. The applicant clearly suffered emotionally from the abuse.

There was no reference to the remedy available under the Victims’ Bill of Rights Act, which makes a person convicted of certain prescribed offences, of which sexual assault is one, liable to every victim of such crime. The victim is presumed to have suffered emotional distress.

Review of Damage Awards

The decision provides a good review of the range of sums which have been ordered by the Ontario Tribunal to persons who have suffered workplace sexual harassment. The highest award remains the recent decision ordering $200,000 to a woman who had suffered sexual abuse over an extended time period.[2] A comparable award of $150,000 had been made to a Mexican immigrant employed as a seasonal farm worker. She was dependent on the employer for a residence, employment and the ability to remain in Canada.[3]

These latter two decisions involve unusual and dramatic facts. The most recent decision of the teenage intern is reflective of a fact situation which is more prevalent in modern society. The typical range expected of such a case tended to be in the area of $25,000 to $50,000.

There is no principle of stare decisis[4] in administrative decisions but human rights cases nonetheless tend to follow a distinctive pattern based on the degree of the offensive conduct, the position of trust which has been violated, the dependency of the victim and the emotional impact of the offensive conduct upon the applicant.

This recent case is illustrative of the progress of the Tribunal in setting awards that provides realistic financial compensation.

Just as was the case in the above decisions, the Tribunal found the owner was the directing mind of the business and ordered the sum to be paid by the owner personally and the business.

Let Advice Guide Your Actions

Counsel for victims in this context often struggle with whether the remedy should be by civil action or by the human rights process. There are numerous advantages and disadvantages of each process.

The human rights process offers no discovery, no costs are ordered, and there can be no punitive damages. The civil action can be more complex. Damage sums at one time were noticeably higher. It does allow for costs to be recovered but can also require the plaintiff to pay costs in certain situations. Legal counsel is required to explain and understand the pros and cons.

From the employer’s perspective, there is no choice of legal forum. The company can, however, act proactively to insure a safe and proper workplace for its employees. The employer often has no direct liability for sexual harassment allegations, presuming the workplace is a safe and secure one.

If you have questions about workplace sexual harassment, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416 364 9599 to schedule a consultation.

 

 

 

[1] GM v X Tattoo Parlour

[2] A.B. v Singer Shoes

[3] O.P.T. v Presteve

[4] That is, requiring one court to follow the reasoning of an appellate or higher court.


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