Workplace Sexual Harassment

Upswing in Human Rights Awards

 Recent years have shown a dramatic increase in compensatory awards for injured feelings in many Canadian jurisdictions in tribunal cases involving allegations of sexual harassment and, indeed, in human rights cases from a general perspective.

Ontario showed the first noticeable change in the climate of these compensatory awards, which in the past had tended to cap in the range of $40,000 to $50,000. While it is true that administrative decisions are not subject to the principle of stare decisis, the real world life is that such awards tend to cluster in predictable ranges.

High side awards, even in the case of extremely offensive behaviours was in the above range, even as recently as 2015. 1 However, in that year, the HRTO awarded to two complainants, both migrant farm workers from Mexico, the sums of $150,000 and $50,000, each in very unattractive fact situations. The victims were both vulnerable workers, dependent on their abusive employer not only for income, but also for the right to remain a resident of Canada. Termination of employment would mean certain deportation.

This was indeed a rare sensational fact situation, as was that in a second case which led to the exceptional award of $200,000 given to the complainant, who was not only dependent on the abuser for her employment income but also for her residence. The Tribunal found a sexually abusive relationship lasted for some 28 years.

More significantly, perhaps, are the cases which depart from the dramatic overtones of the two cases immediately above. Take for example, the far too common situation of a young probationary employee, young as in 15 years of age, who was subjected to sexual abuse by her employer. Her boss touched her buttocks, inserted his finger into her vagina and invited her to touch his penis. He put his mouth to her breasts. These facts are far from that endured by the Mexican migrant workers, yet still, extremely traumatic to a 15 year old girl. She recovered $75,000. This case is more significant than the two extreme fact situations, in that as these facts are regrettably very more commonplace.

A 2020 decision was of the same vein. The same award of $75,000 was given to a woman who complained of a series of harassing and unwanted behaviours over an extended time period and one forced kiss.

A second 2020 award was made in the sum of $50,000 for conduct which was described by the Tribunal as “not egregious”. The offensive behaviour involved 2.5 months of suggestively sexual words and some touching.

Again in 2002, the sum of $170,000 was awarded to a complainant who proved allegations of persistent and severe sexual harassment, including one event of unwanted sexual intercourse.

Although not a sexual harassment case, a recent award by the B.C. Tribunal in January of 2021 allowed the sum of $170,000 for compensation for emotional harm, after a 20% discount. This is exceptional in B.C. The total award with past and future income loss approximated $900,000.

The previous high water mark of Kelly v UBC was $75,000 and prior to that decision, the highest award had been $50,000. Indeed, in the Kelly case, on first review, the motions judge had found the tribunal award patently unreasonable, only to be reversed by the Court of Appeal.

A recent Manitoba decision awarded $75,000 due to adverse treatment on account of sexual identity. The previous maximum award was $20,000. Again, this is a remarkable departure from the previous norm.

Awards of past and also future income loss are legendary in human rights cases. The bar to show employer liability is generally set much lower in human rights litigation,2  as contrasted with the burdensome vicarious liability test in civil cases based on tort claims. Costs are not awarded, which can be a double-edged sword, as the applicant has no restraint for the fear of an adverse ruling.

These awards are reviewed in chart format here.