Zero Tolerance

2018 has been a significant year so far at the Human Rights Tribunal of Ontario in terms of remedies. Over the past decade or so, damages for compensation for injury to dignity, feelings and self-respect, have traditionally been between $10,000 and $20,000. The high water mark was less than $50,000. Then on May 22, 2015, Vice-Chart Mark Hart issued decision where he awarded $150,000, raising the bar on these damages substantially (click here to read a blog I wrote shortly after O.P.T. v. Presteve Foods Ltd. was released).

After Presteve was released, lawyers, adjudicators and participants in the human rights system were left wondering whether it was an outlier decision given the serious facts, or whether this marked a significant shift in the quantum of awards more generally.

Throughout 2016 and 2017 the general damage awards remained relatively stagnant, creeping up slightly toward a $20,000 average.

Finally, we get to 2018. On January 24, 2018, Vice-Chair Dawn Kershaw (no longer an adjudicator at the HRTO) released A.B. v. Joe Singer Shoes Limited,[i]  and on February 26, 2018, Vice-Chair Maureen Doyle released G.M. v. X Tattoo Parlour.[ii] I will summarize each of these decisions briefly.

A.B. v. Joe Singer Shoes Limited

The Applicant in this case was a single mother who not only worked for Joe Singer Shoes, but also lived in an apartment located above the store. The Applicant made a number of serious allegations against Mr. Singer, including that he made fun of her language skills and her body, made inappropriate comments about her place of origin, and sexually assaulted and harassed her over several years.

Mr. Singer denied the allegations and the case turned on credibility – who did the Tribunal believe on a balance of probabilities? The Tribunal preferred the evidence of the Applicant, finding that she was sexually harassed and solicited not only at work in the store, but also in her apartment. Vice-Chair Kershaw stated at paragraph 143:

I find on a preponderance of probabilities that Mr. Singer sexually harassed and assaulted both in her apartment and in his office which as part of her place of employment. The applicant was vulnerable given she had no family here, was single, lived above the store and English was not her first language. I find that Mr. Singer told the applicant she was stuck, that he had money and would get the best lawyers if she reported him while she would have to rely on community lawyers, and that she stayed because she felt she had no option.

The Tribunal ordered $200,000 in damages for injury to dignity, feelings and self-respect, becoming the highest general damage award ever awarded by the Tribunal.

G.M. v. X Tattoo Parlour

The Applicant in this case was a fifteen year old intern who worked in a tattoo parlour. This was her first job and she aspired to be a tattoo artist in the future. The Applicant alleged that the inappropriate behaviour began as sexual conversation and after two weeks included inappropriate touching and then a solicitation to engage in sex in exchange for money and a tattoo.

The Applicant pled guilty to three criminal charges, including one for sexual assault.

The Tribunal found or the Applicant, noting at paragraph 57:

…the Applicant’s vulnerability was marked. As a minor, working at her first job, she was extremely vulnerable, and I find that this was compounded by the fact that her boss, the individual respondent, was a trusted family friend.

Vice-Chair Doyle stated:

…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…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.

Vice-Chair Doyle ordered $75,000 as compensation for injury to dignity, feelings and self-respect. The award was made jointly and severally against both the tattoo parlour and the owner as an individual (meaning that if the business went bankrupt, the owner would also personally be liable for damages).

Take Away

General damage awards are rising. We are seeing a significant increase in damages for sexual harassment and sexual solicitation. It’s about time. While these are significant award relative to past awards from the Tribunal, they are still too low from a moral perspective. Anyone who believes $75,000 is a fair number to compensate a teenager working in her first job who was sexually harassed and assaulted by her boss (also a family friend), needs to re-evaluate. Most people would not agree that $200,000 is sufficient to compensate an individual who has repeatedly experienced sexual assault over a multi-year period. While these damage awards are exciting in that they signal a substantial increase in the quantum of awards coming out of the Tribunal, they are simply not sufficient in relation to the serious conduct that occurred. Having said that, in G.M., it should be noted that the Applicant was only seeking $75,000 in general damages and Vice-Chair Doyle awarded what was sought.

Another unfortunate fact is that general damage awards in cases involving discrimination on the basis of disability (the majority of cases before the Tribunal) are not markedly increasing. High outlier decisions focusing on sexual harassment and solicitation are positive, but what would be more effective for Ontarians would be an increase in general damage awards across cases involving all of the Code­-grounds to prevent exactly what the Divisional Court has previously cautioned against – that general damage awards should not be so low that they are a mere license fee for employers to discriminate.

___________________________________________

[i] A.B. v. Joe Singer Shoes Limited, 2018 HRTO 107 (Vice-Chair Dawn Kershaw)

[ii] G.M. v. X Tattoo Parlour, 2018 HRTO 201 (Vice Chair Maureen Doyle)

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