Workplace Sexual Harassment

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