Remedies – Compensatory Damages for Hurt Feelings – Ontario

The review of compensatory damages for all human rights violation is addressed in detail here.

Ontario’s Human Rights Code prior to June 30, 2008

Ontario’s present Code became law as of June 30, 2008. It is important to understand the issues in the historic interpretation of the prior Code in the use of such precedent damage awards under the former Code in the modern context as it may be confusing to reference certain of such past authorities today.

The former code, unlike the modern version, contained a provision was described an award for “mental anguish” due to wilful or reckless conduct and set a cap for such an award at $10,000. Many early decisions misconstrued this provision as setting a maximum sum for any award of compensatory damages¹.

This issue was ultimately resolved as late as February of 2001² when it was determined that this statute allowed for awards of general damages without a ceiling in addition to the “mental anguish” $10,000 cap as set out in the statute³.

For these reasons, readers of cases under the former Ontario Code should be alive to the historical issues as noted above. Only cases which clearly embrace the authority of the Board to order general damages over and above the $10,000 mental anguish award should be used in the modern context.

Secondly, to receive an award of “mental anguish”, it must be recalled that the complainant was formerly required to prove conduct which met the test of “wilful or reckless ⁴”. Such awards were made only where “there was a relatively high degree of mental pain and distress.” ⁵ These awards were made frequently in sexual harassment cases.⁶

Setting the Award for Damages for Injured Feelings – Generally

The general test for the assessment of general damages involves an assessment of the following factors⁷:

1. the humiliation experienced by the complainant;

2. the hurt feelings experienced by the complainant;

3. a complainant’s loss of self-respect;

4. a complainant’s loss of dignity, self-esteem and confidence;

5. the experience of victimization;

6. the vulnerability of the complainant; and

7. the seriousness, frequency and duration of the offensive treatment.

Compensation for Injured Feelings – Sexual Harassment

It has been generally accepted that the awards made in sexual harassment cases should be higher than usual compensatory awards due to the likelihood of more severe personal consequences and the inherent vulnerability of the victim ⁸. The unstated reason may be that the conduct is clearly intentional, for personal gratification, and often in an abusive relationship with an inherent power imbalance. It is distinct from the usual human rights violation.

The factors which have been determined to be influential in shaping the sum to be awarded for emotional harm in a sexual harassment case have been stated to be as follows⁹:

1. the nature of the harassment, that is, was it simply verbal or was it physical as well;

2. the degree of aggressiveness and physical contact in the harassment;

3. the ongoing nature, that is, the time period of the harassment;

4. its frequency;

5. the age of the victim;

6. the vulnerability of the victim; and

7. the psychological impact of the harassment upon the victim.

The amount should not be set so low as to be a “licence fee ¹⁰”.

It has been noted that the manner in which the employer has responded to the claim should be a factor in determining the quantum of the sum to be awarded as compensation.In addition, the existence of a harassment policy and its enforcement¹¹ will also be considered in this context¹².

The financial status of the respondent has no relevance to the award¹³, that is, the difficulty the respondent may have to pay the award.

There is usually no punitive component to the award¹⁴.

The tribunal will consider all relevant factors. The fact that the incident may be an isolated occasion and was pre-meditated and no medical evidence was led, were all be factors in reducing the size of the award¹⁵.

Certainly medical evidence will be preferred and will likely allow for a more generous damage assessment, but it is not mandatory to prove the degree of emotional trauma suffered by the applicant. ¹⁶

This was also the view of the Supreme Court of Canada in the 2017 decision of Saadati v Moorhead in a tort claim asserting damages for a psychiatric illness, in which no medical evidence was called at trial.

In Ontario, until 2015, the damage awards for sexual harassment tended to cluster in the range of $20,000 to $25,000. The broad spectrum was then noted to be from $12,000 to $50,000¹⁷, the award being affected by the factors as discussed above and also whether there was a reprisal, which may or may not be considered as an independent award¹⁸. The award has also been influenced by whether the victim suffered a loss of employment, notwithstanding that this may lead to a discrete claim.

An award of $12,000¹⁹ was made due to verbal and modest physical touching²⁰.

A general damage award of $16,000 due to a single incident and a reprisal. ²¹ was influenced by the flawed investigation and the finding of reprisal for an incident which was serious, but isolated.

The sum of $17,500 was awarded to a probationary sales representative²², certainly in a position of a power imbalance²³.

The sum of $18,000²⁴was awarded to a person employed as a commission sales representative. Her boss had asked her what kind of underwear she wore, told her when she crossed her arms he could not see her chest, referred to her cotton candy soda pop drink as “cotton panties’, offered to take her to a hotel for her birthday, asked her to sit on his lap, said he wanted to jump her, asked her for oral sex, and to sleep with him.

An award of $25,000²⁵ was made reflective of a two year pattern of sexual harassment by a manager to a person in a subordinate position, aged 29. It was accepted that the complainant had immediately objected to the behaviour. In the same case an award was made for mental anguish of $10,000; The term “mental anguish” is used with specific reference to the former Ontario Code. [/efn_note]

Similarly such an award of $25,000 ²⁶ was made in favour of an 18 year old co-op student who had finished her first year of college. She was terminated as an act of reprisal due to complaints of sexual harassment. ²⁷

The same award of $25,000²⁸, which was however inclusive of a $10,000 mental anguish sum²⁹, to a 24 year old single parent who had been harassed while in the middle of a custody fight³⁰.

This sum was also awarded against a respondent who also had slapped the complainant’s bottom, put his hands under sweater and touched the lower part of her breasts, pinched her bottom, attended at her apartment and pushed her onto her bed, tried to grab her inner thigh and came to her home without invitation. He also pleaded guilty to a charge of criminal harassment³¹.

This same award was given to a student in a law clerk program, who was sexually harassed by being caressed on her lower back, called “hairy”, asked her if her thong was comfortable and was told that it looked good, was spanked on her buttocks³².

An award of $35,000 was made, in which the respondent made frequent references to the complainant’s past sexual relationships, questioned her about her sexual relationship with her husband, amongst other offensive behaviours³³. She had been racially and sexually harassed³⁴.The prior General Manager testified that she was instructed to find a pretext to terminate the complainant because of her complaints, a course which she refused to follow.

An award of $40,000³⁵ was made in a context in which the offensive conduct was found to be “persistent, unrelenting” and one act of sexual aggression which resulted in a criminal charge³⁶.

The same award of $40,000³⁷ was made in a situation in which the personal respondent told the complainant that he wanted to date her, and asked her out several times, always being declined. Following her pregnancy, during which he paid no attention to the complainant, and after her return to work, he wrote her letters advising that he loved her, and that he wanted to be with her, even though he was married. In the letters he said he wanted to have sex with her. He left her a note stating that if she did not sleep with him, he would force her to do so.

He also began to touch her in a sexual way, touching her legs, breasts and buttocks. He frequently tried to enter the bathroom with her. On one occasion, he pushed the bathroom door open and touched her breasts and tried to insert his fingers into her vagina.

On more than one occasion, he masturbated and called the applicant to come and see him. He called her demeaning names and assigned her work which was belittling, such as washing dishes and peeling vegetables, which was not required of other servers.

She sought medical help and was given anti-depressants. She suffered from migraines, loss of sleep, and lack of energy. The personal respondent was charged with criminal assault.

Modern Decisions

The sum of $45,000³⁸ was ordered in favour of a woman who was subjected to a single severe incident of harassment. The male forced the applicant to touch his genitalia and ejaculated on her. He also touched her breast and tried to pull her pants down.

An award of $75,000 was made to a young woman employed as an unpaid student intern.

The complainant, who was but 15 years of age at the time of the offensive conduct, was working in her first employment at a tattoo parlour. The owner and “controlling mind” of the business, even more tragically, was a personal friend of the victim’s parents as was his spouse. This personal respondent had in fact borrowed money from the victim’s parents to open the business.

The parties had agreed that the Tribunal may make reference to the transcript of the criminal proceeding against the personal respondent, to which a guilty plea had been tendered. The judge in the criminal case summarized the most dramatic aspects of the  offensive conduct as follows:

On August 27, 2014, both “G.M. and [personal respondent] were at the tattoo shop. They were alone after other staff members left for the evening. Sexual discussions and activity occurred. “G.M.” produced nude photographs of herself. [Personal respondent] touched her buttocks and minimally, (for two seconds), inserted his finger in her vagina. He showed her his penis and invited her to touch it. She did so to appease him. He touched and put his mouth to her breasts. She said it lasted about five minutes. She testified she resisted the sexual activity telling him that he had a wife who was close to her mother. She also related he offered her money and a free tattoo for sex.

A total award of $50,000³⁹ was made to a male applicant which was apportioned as a total of $10,000 against two respondents individually, $25,000⁴⁰ against the employer, and $15,000 for reprisal.

The sum of $75,000 was granted in a recent decision due to persistent harassment and one forced kiss. ⁴¹

The same award of $75,000 was made in 2019 to a woman who complained of unwanted acts of sexual solicitation. The complainant was a probationary housekeeper who was harassed by the General Manager of the hotel. ⁴²

The same sum was awarded to a woman who was sexually abused by her boss. He invited her to his hotel room, allegedly to discuss certain personal issues and proceeded to attempt to assault here and attempted to forcibly prevent her from leaving. He pleaded guilty to a criminal charge of assault. The award was made in a default hearing. A later motion to reconsider, with legal counsel, was dismissed. ⁴³

A prior order had been made against the corporate employer for a poisoned work environment and the failure to investigate the complaints made by the applicant in the sum of $55,000. ⁴⁴

The then highest award of  $150,000⁴⁵ was made in favour of one complainant and $50,000 to a second in a particularly unattractive fact situation.

Both complainants were migrant workers from Mexico in Canada on temporary work permits and threatened with termination and hence deportation, failing each one’s willingness to comply with the owner’s demand for sexual favours. The tribunal found the conduct to be unprecedented⁴⁶. The second victim, 22 years old, was required to leave Canada and return to Mexico.

In April of 2020, $170,000 was awarded to a complainant who proved conduct of persistent and severe sexual harassment and one act of unwanted sexual intercourse. ⁴⁷

The highest compensatory award to date of $200,000 was made to a woman who had suffered ongoing sexual abuse for 29 years. She  resided in an apartment also owned by a related company. She was the sole supporter of a disabled son.

She was required to submit to various forms of sexual demands, including sexual intercourse, over a period of 18 years. Following her report of this conduct to the police, she faced eviction. The criminal charges were dismissed. The award was made against the owner of the business personally and against the company. ⁴⁸

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1. Kearsley v St.Catharines by the Board of Inquiry, chaired by a former Supreme Court of Ontario Justice, Mr. Dennis O’Leary.
2. the Divisional Court in Ontario Human Rights Commission v Shelter Corporation
3. This issue was still being debated as late as 2008, in ADGA and Lane
4. Professor Cumming, then sitting as an ad hoc Board, defined “recklessly” as conduct, which is “such as to evince disregard of or indifference to its consequences, that is, the conduct is done with rashness or heedlessness; it is done wantonly”, without regard for the possible injurious impact on the complainant: Cameron v. NelGor Castle Nursing Home
5. Board of Inquiry in Ketola v Value Propane (Garfield)
6. This remedy was essentially punitive in nature, as per the Divisional Court in ADGA and Lane.This is so also for awards of “special damages” under the Canadian Human Rights Act. It underscores the need for punitive damages for sexual harassment cases.
7. Sanford v. Koop, ADGA Group Consultants Inc. v. Lane, at para. 152
8. Hill-Leclair v. Booth;, G.G.v 1489024 and Elias (Whist)
9. Torres v Royalty Kitchenware Ltd., (Cummings), subsequently Mr. Justice Cummings of the Ontario Superior Court. This decision has been universally accepted as the criteria for this award, although the sums awarded have increased. See Behm v. 6-4-1 Holdings and others, ; Soroka v. Dave’s Custom Metal Works Ltd., Young v. Petres
10. Sanford, at para. 34; also ADGA Group Consultants Inc. v. Lane, at para. 152; Payotte v Alarm Guard Services (Dimovski)
11. This is the Wall test referenced previously. This is so for all human rights awards, not just sexual harassment
12. Payette v Alarm Guard Security Services; Murchie v. JB’s Mongolian Grill,
13. Hughes
14. The exceptions are noted here. In most cases, there should be a punitive aspect, but human rights statutes often do not allow for such an award and when allowed, the sums ordered are often modest.
15. G.G. v 1489024 and Elias, (Whist) An award was made of $18,000 for injury to feelings, dignity and self-respect in addition to an award of $11,940 for lost wages. This effectively covered the applicant’s period of unemployment from June 11 2009 to November 27, 2009
16. Cugliari v Clubine (Faughnan);Fuller v. Daoud (2001) Ont. Bd. Inq.
17. Sands v Moneto Marketing HRTO; Smith v The Rovers Rest ; Vipond v. Ben Wicks Pub and Bistro. This should by no means be interpreted as a cap.
18. Garofalo v Cavalier Hair Stylists, a January 2013 decision of the Tribunal (Bhattacharjee)
19. Metcalfe v PapaJoe’s Pizza The sum of $8,000 was also awarded for mental anguish which was later reduced to $1,000 by the Divisional Court without reasons.
20. Comments were made such as “you are a good looking person”, “nice legs”, “nice body”, which occurred every day or every other day. The comments became more rude, more abrupt, more often and more specific, such as “nice boobs” and that she should go into the back so he could suck on them. Other comments continued such as,“can I see your body?”, “can I touch your body?”, “can I kiss you?”, “How old was the oldest man that you have slept with”, “I’ll give you $100 to sleep with my son”. In July, 2001, Toufighjou asked her to take off all her clothes so that he could tell if her body was any good so that she could be a stripper. When she was driving Toufighjou home he started rubbing her arms telling her that her skin was soft asking for a goodbye kiss. When she arrived the next day, Toufighjou said, “where is my kiss?” On one occasion when she was cleaning the fire hoods and her shirt was untucked from her pants, she noticed that Toufighjou was looking up her shirt. She immediately got off the chair and said “why are you doing this?”
21. Murchie v JB’s Mongolian Grill (Hendriks) The respondent was found to have “flicked” the complainant’s nipple.
22. It was found that Mr. Clubine met Ms. Cugliara at Centro’s restaurant. He talked to her at her table and asked her to join him at the bar, an invitation which she accepted. He then engaged her in discussions which included sexual banter and a sexual solicitation. Ms. Cugliara vomited in the washroom. They left the restaurant together and arrived at the parking lot where Mr. Clubine kissed her and touched her in sexual manner. The complainant testified that she pretended to enjoy this conduct. The Complainant’s evidence was that she pretended to enjoy the sexual touching, hoping that it would shortly end. Ultimately, she advised Mr. Clubine that she was ill and he desisted:

    I find that what is singularly lacking in the events as they transpired is any effort by Mr. Clubine to take appropriate steps to determine himself whether the statements he was making or the actions he took were unwelcome. The Complainant had previously tried to divert sexual conversations and rejected his sexual solicitations, but he persisted in engaging in a course of vexatious comment and conduct, related to the Complainant’s sex

23. Cugliara v Clubine (Faughan)
24. Payotte v Alarm Guard Services. A further $5,000 was awarded for failure to investigate.
25. Sandford v Koop (Gottheil) This was then considered a high side award. 
26. Also an award was made of $5,000 for mental anguish in Arias
27. Arias v Desai
28. Desousa v Gauthier (DeGuire)
29. There was also a general reprisal finding
30. Examples of behaviour of the offensive conduct were the pinning of Sunshine girl images throughout the office, placing sexually explicit paraphernalia on her desk, the personal respondent pulling down the complainant’s underwear, speaking words to the complainant and about her, such as “a nice pair of tits”, “ I would like to wrap my legs around her”, “ I will keep you warm at night because you have no man at home”, squeezed her buttock, rubbed her shoulder, traced with his hand over a run in her nylon.
31. Hughes v 1308581 and Hussein (Martin)
32. Ratneiya v Daniel & Krumeh
33. Baylis-Flannery v DeWilde (Hendriks)
34. Again in the above, there was an award made for $10,000 for mental anguish
35. SH v MPainting (Reaume)
36. In this case, the complainant endured a persistent, unrelenting pattern of inappropriate comments and conduct, including sexual touching and one act of serious sexual aggression. The respondent pled guilty to criminal harassment and admitted in the course of the guilty plea that he engaged in inappropriate comments and touching on a daily basis. The complainant testified that she was humiliated, experienced significant stress, anxiety and depression, sought counselling to deal with the effects of the harassment, developed feelings of isolation and fear and an overall lack of self- confidence. The complainant also testified about how acutely vulnerable she felt as an aboriginal, single-mother with respect to both the experience of being harassed, and the limited choices she felt were available to her to combat the respondent’s behaviour.
37. M.K. v 1217993 Ontario Inc., operating as Wimpy’s Diner.It may be noted that no one appeared for the respondents in the liability or remedy hearing. A reconsideration motion with counsel was not successful
38. C.K. v H.S.
39. Smith v Menzies Chrysler (Chadha)
40. This was due a poisoned work environment in Smith v Menzies Chrysler
41. McWilliam v Toronto Police Services Board
42. A.M. v Kellock. The case was undefended.
43. A.B. v Paquette
44. A.B. v Cooksville Hyundai
45. Tribunal (Hart) in O.P.T.and M.P.T v Presteve Foods Ltd.and Pratas
46. In this case, I have found that when alone in the house in Leamington with O.P.T., the personal respondent abused his position of power and authority over her to require her to perform fellatio on him on three occasions and to penetrate her with his penis on another three occasions. O.P.T. felt compelled to comply with the personal respondent’s demands on the basis of his threats to send her back to Mexico, when she needed her job in Canada in order to help support her two children.
47. N.K. v Botiuk The case was undefended.
48. A judicial review application was dismissed by Divisional Court