Sexual Harassment: Sue or Human Rights?

There has been much debate as to the best forum for advancing a claim for workplace sexual harassment. The administrative process by means of the relevant statute is certainly the most accessible and the least expensive in most cases. However, this process will offer no compensation for costs, and reciprocally, will impose no liability for legals, whether or not an offer to settle has been made. Also, there will be no possibility of recovering punitive damages. ¹

Ontario will, of course, allow a civil proceeding to enforce the human rights remedy, which will allow for costs issues to be in play, given a companion action. This again is a judgement call as this will also expose the plaintiff to costs liability. A companion action will be required. This cannot be the same remedy as the human rights relief. A claim, for example, for a tort remedy such as assault and battery and/or the intentional infliction of emotional distress will likely be regarded as “a drafting sleight of hand” and fail the test of a valid companion claim.

More significantly, if civil proceedings are contemplated, perhaps the best remedy is the civil action for tort claims, such as assault and the intentional infliction of emotional distress and perhaps breach of fiduciary duty, where the context permits. These claims will allow for the possibility of a jury trial and, likely, more dramatic damage claims, including punitive damages.

A recent civil claim decided in November of 2024 in Ontario is reflective of the differences between civil awards and that within the human rights remedies, whether this be by the administrative process, or in Ontario, by human rights through a civil proceeding. ²

The case involved a sexual assault committed by the defendant, who was an older neighbour, a lawyer, and a family friend, against the plaintiff, then 29 years of age. The plaintiff was sexually assaulted by the defendant and one other man. The assault included repeated acts of fellatio upon the plaintiff. The trial judge accepted the plaintiff’s evidence, concluded that there was no consent and that the plaintiff was traumatized by these events.

The award made for general and aggravated damages was $300,000. More significantly, the award made for punitive damages was set at $250,000. In addition, sums were allowed for past lost income and future psychological care. Substantial indemnity costs were also granted.

The highest damage award made by an Ontario human rights tribunal, one for sexual abuse which lasted for decades, is $200,000. It is fair to say that this is unique. ³

The nearest equivalent to the facts of the immediate case was a decision made by the New Brunswick Labour & Employment Board in 2007. The complainant awoke while travelling with a business partner to find him committing fellatio upon him. The damage award was $15,000. ⁴ New Brunswick was not then known for excessive human rights compensatory awards, yet the difference, even with inflationary adjustments for the passing of time, is remarkable. New Brunswick has recently show a rejection of such lower range awards.

Certain legislatures in Canada have capped the sum which may be awarded for personal suffering in human rights complaints. The highest allowable amount in Saskatchewan is $20,000, in Manitoba is $25,000 and in the federal process is $20,000. A further sum of $20,000 may be awarded in the federal system where the conduct is reckless which often is applied to sexual harassment cases. In these jurisdictions, the distinctions are vivid.

The rule against awards of punitive damage awards in the human rights administrative process makes no sense, given sexual abuse which is deliberate, and for obvious personal gratification, often by an offender in a position of economic power over a subordinate.

The argument of vicarious liability to impose responsibility upon the employer remains a high hurdle in civil cases. This remains a qualifier in most cases as the risk must be closely and materially related to the business. In Ontario, the employer is not responsible for sexual harassment complaints, barring an exception of controlling mind, or reprisal, or a poisoned work environment, which is often a lesser burden.

A further factor, which may be decisive, to consider is that the bankruptcy of the defendant will not avoid a civil judgment for damages for sexual assault. This does not apply to a decision of a human rights tribunal. ⁵

It may remain to many a judgment call as to which avenue provides the optimum relief with the least risk. Should there be a chance of insolvency, there should be no issue.

1. There are exceptional circumstances for a costs award in Alberta, as reviewed here.
2. BE v OR. Not presently on Canlii. It is reviewed by Elizabeth Grace of Lerners here
3. AB v Joseph Singer & Singer Shoes; upheld in Div’n Ct
4. SWE v BK
5. s. 178 (1) a (a.1) of the Bankruptcy & Insolvency Act