Workplace Sexual Harassment

Teenager Recovers $75,000

The Ontario Human Rights Tribunal has recently awarded the sum of $75,000 as damages for injured feelings to an unpaid teenage intern for workplace sexual harassment.

No issue was raised by the respondents to dispute the assertion that such an unpaid assignment was “employment” to allow for jurisdiction of the Ontario Code.

The highest award remains the recent decision ordering $200,000 to a woman who had suffered sexual abuse over an extended time period. 1 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. 2

This decision, however, remains a high side award for what may be described as a more frequently arising fact pattern. The above two awards represent highly unusual and rarified fact situations. The facts in this case are representative of human rights violations that occur all too frequently in the employment context.

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.

There was a clear violation of a position of trust committed against a person who was a minor. The sexually offensive conduct was infrequent, but involved inappropriate sexual touching and sexual solicitation. The applicant clearly suffered emotionally from the abuse. The Tribunal summarized her evidence on this issue as follows:

I am persuaded that this applicant experienced in a profound way, humiliation, hurt feelings, a loss of self-respect, a loss of dignity, a loss of self-esteem and confidence following the events at the tattoo parlour and arising from the respondent’s actions. She has given evidence, which I accept, of how these events had an impact on her in many facets of her life. She did not reveal any of the comments over her time at the tattoo parlour, or the events of August 27, 2014 to her parents voluntarily, and appears to have only revealed events relating to August 27, 2014 to her girlfriend. She spoke of not wanting to participate in criminal proceedings, calling those proceedings “difficult.” Prior to her experience with the respondent, she had a love of drawing, and the joy she derived from it has now been taken away from her. She was previously excited about the prospect of a career using her art, in the form of tattoos, considering it to be an honour to have someone commit to wearing her art on their body. She no longer has excitement, or even interest, in a field she previously identified as desirable and one that she wished to pursue as a career. While many teenagers may be expected to change their minds, even several times, regarding their future career choices, the applicant did not have the opportunity to change her mind through a process of discernment: rather, she had her dream taken away from her by the respondent’s actions. She has also experienced difficulty sleeping, and has been troubled by nightmares. She has experienced difficulty with intimacy and has engaged in “risk taking behaviour.” Finally, she has endured a period of substance use which appears to have been problematic, and she states that she is now “clean.”

The only issue before the Tribunal was the amount of damages to be ordered as compensation for injured feelings.

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.

Although there does not exist a principle of stare decisis in administrative decisions,  human rights cases in each jurisdiction 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. Generally speaking, absent the two exceptional awards referenced above, the expected range for damages for injured feelings tended to be in the broad range from $10,000 to $50,000.

The submissions from the counsel for the respondent sought a damage award in the range of $25,000 to $35,000, which frankly was not inconsistent with past awards.

This award may have been influenced by media attention given recently to workplace harassment, sexual and otherwise. It remains to be seen as to whether this case will become a bell weather for future awards.

The personal respondent was found to be the “controlling mind” of the company which led to a finding of liability against the corporation based on the organic theory of liability. The Ontario Code does contain a deeming provision making the employer responsible for most workplace human rights wrongs, but denies its application to sexual harassment complaints.