Across Canada, Human Rights Tribunals have a unique role in our legal system by enforcing protections against discrimination provided by human rights legislation. As part of their mandate, these specialized tribunals have the authority to award damages and “make whole” victims of discrimination, including:
- Damages for past and future wage loses;
- Damages for loss of benefits and other perquisites of employment;
- General damages for injury to dignity, feelings and self-respect.
In the past, damages in human rights cases have been relatively restricted, with general damages being limited to $20,000 in the most severe cases. However, over the course of the past years damage awards for human rights violations have been rapidly escalating.
This trend was confirmed in the recent decision of O.P.T. v. Presteve Foods Ltd., 2015 HRTO 675, a case which received a lot of attention in the employment and human rights law bar for its disturbing facts and its record setting award of general damages.
In this matter, two sisters from Mexico were hired by Presteve Foods to work as temporary foreign workers (TFW) in a fish processing plant. Under the terms of their work visa, the complainants were prohibited from working for any company apart from Presteve.
Over the course of the nine months that the sisters were employed, the owner of the company exploited their status as TFWs to engage in ongoing sexual harassment and assaults. The owner’s actions ranged from dinner solicitations, to unwanted comments and touching, to forced sexual acts. When the complainants would refuse the solicitations, the owner would become angry and aggressive and would threaten to fire them and send them back to Mexico.
After a particularly violent exchange, one of the complainants pressed criminal charges and eventually filed a human rights complaint. In its findings, the Human Rights Tribunal of Ontario noted that the owner and principal of Presteve Foods engaged in “a persistent and ongoing pattern of sexual solicitations and advances” and that he “knew or ought reasonably to have known that these sexual solicitations and advances were unwelcome, particularly in light of the fact the O.P.T. expressly resisted and rejected his advances on many occasions.”
The Tribunal also commented on the inherent vulnerability of migrant workers in Canada and their susceptibility to exploitation and abuse. Given the severity of the contraventions of the Human Rights Code, the Tribunal awarded the complainants damages for injury to dignity, feelings and self-respect in an amount totalling $200,000.
The Presteve case is the most recent in a string of important human rights decisions awarding significant, six-figure awards for damages. In fact, it certainly seems that large awards in human rights cases are a trend that we will continue to see in the future.
In light of these changes, employers should keep the following in mind in managing their human resources:
- Human rights legislation applies to all employees working in Canada, including foreign nationals employed on temporary work permits
- Human rights tribunals are easy to access and unlike a court, there are no cost-consequences for an unsuccessful complaint
- Employers must take note of these rising awards. More than ever, it is imperative to ensure that decisions to discipline and terminate do not involve discrimination
- Employers need to understand that discrimination and harassment cannot, under any circumstance, be tolerated, and that the consequences of failing to provide a discrimination free workplace can be significant.
If your business is having HR challenges involving potential human rights issues, or if you or your business has been the subject of a human rights complaint, contact Kent Employment Law to speak to one of our employment and human rights lawyers.