Breaking Away from the Pack: HRTO Vice-Chair Orders $150,000.00 General Damage Award in Unprecedented Decision

Posted: May 28, 2015 in Human Rights Tribunal of Ontario, Remedy
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O.P.T. v. Presteve Foods Ltd. – Overview of Case

Last week, the HRTO released a landmark decision – O.P.T. v. Presteve Foods Ltd., 2015 HRTO 657. The Respondent, Presteve Foods, hired two migrant workers, properly referred to as temporary foreign workers, into their fish processing plant. A number of allegations of misconduct were raised during the course of their employment against Jose Pratas, the owner of Presteve Foods, which included unwanted sexual solicitations and advances, sexual assault and touching, a sexually poisoned work environment, discrimination on the basis of sex, and reprisal for claiming Code rights.

The findings of fact were extensive and the Tribunal found them to be “unprecedented.” The Tribunal found, amongst other things, that Mr. Pratas forced one employee referred to as O.P.T. to perform fellatio on him on several occasions. Mr. Pratas engaged in intercourse with O.P.T. on a number of occasions. He regularly threatened to send O.P.T. back to her native country (Mexico).

In order to keep her job and avoid deportation, O.P.T. felt she had no other choice but to comply with Mr. Pratas’ sexual demands. O.P.T. was the sole provider for her two children, her husband having been tragically killed previously. Being a temporary foreign worker, O.P.T. was completely dependent upon Presteve Foods. Employers do not require a reason to end a temporary foreign worker’s employment and when that occurs the worker is repatriated to his or her home country without any right to appeal.

$150,000.00 Awarded as General Damages

While this Decision is extremely important in that it recognizes the unique position of vulnerability of temporary foreign workers, it is equally important in that the quantum of damages is unprecedented. Vice-Chair Mark Hart ordered Presteve Foods and Mr. Pratas to pay damages to O.P.T. for compensation for injury to dignity, feelings and self-respect (also known as general damages) in the amount of $150,000.00.

Last year, I wrote a blog article praising a 2013 decision of the British Columbia Human Rights Tribunal, Kelly v. University of British Columbia, where the Tribunal awarded $75,000.00 in general damages. I concluded that blog with hope that Ontario would follow suit and increase their general damage awards. It appears that hope has been realized.

O.P.T. v. Presteve Foods Ltd. is precedent-setting. Even though the award is proportionate to existing HRTO jurisprudence given the unprecedented facts as pointed out by the Tribunal, it is still three times greater than the highest award ordered previously by the HRTO. Two very courageous applicants willing to see the process through, represented by superb legal counsel, and a Vice-Chair with the courage and conviction to break away from the pack and award a meaningful and justified general damage award that has never been seen before in Ontario, has resulted in a decision that I can only hope is the beginning of increased general damage awards across the board. While there will certainly be those who suggest this is an outlier decision given its unique facts, one thing is for certain – the ceiling has been raised.

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