Posts Tagged ‘General Damages’

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.

Human Rights General Damages on the Rise – $75,000 Awarded in B.C.

Posted: June 7, 2014 in Disability, Duty to Accommodate, Remedy
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Departing from Previous Cases – A Step in the Right Direction

The British Columbia Human Rights Tribunal recently awarded $75,000.00 as general damages, signalling that human rights damages are on the rise – and it’s about time.

In Kelly v. University of British Columbia (No. 4), Adjudicator Enid Marion, considered a case in which Kelly, who possessed a medical degree, was unable to complete his medical residency at the University of British Columbia and was ultimately terminated from the program, in part due to his disabilities – ADHD and a non-verbal learning disability. Due to his termination from the program, Kelly found it very difficult to find other work. After all, why would someone with a medical degree be looking for jobs other than physician positions?

In an earlier decision, the Tribunal found that UBC had discriminated against Kelly and failed to accommodate his disabilities. As a result, he was reinstated into the residency program, approximately six years after he had been terminated. In the decision on remedy, the Tribunal ordered lost wages for what Kelly would have earned had he been accommodated in the first instance. Over a six year period, this amount totalled $385,194.70. This should not be surprising to anyone. Human rights remedial principles are intended to make those experiencing discrimination “whole”, or to put them in the position they would have been in had they not experienced discrimination. Physicians earn significant incomes. Kelly’s full income potential was delayed by approximately six years and this amounted to a large lost wages award.

The true significance of this decision however is the high general damage award – $75,000.00 for injury to dignity, feelings and self-respect. The Tribunal stated at paragraph 101:

…it is relevant and principled to consider that Dr. Kelly was pursuing an almost life-long desire to become a physician and that the loss of that opportunity had a serious and detrimental impact on him, particularly within the context of his family dynamics. (His father was a physician and Kelly intended on working with him). Dr. Kelly suffered deep humiliation and embarrassment as a result of the discrimination, which was ongoing for a significant period of time. He experienced symptoms of depression, including a lack of interest in life, trouble sleeping, and other health-related problems.

There is no question that the general damage award in this case departs from  the general trend in human rights. General damages in Ontario typically range between $10,000.00 to $20,000.00 (with the majority of decision-makers awarding $15,000.00). There will be those who argue that a $75,000.00 award, well above the average, is uncalled for in a case where Kelly was reinstated into the program, successfully completed it and became employed as a physician. While many will criticize the decision for departing from the established trend and previous cases, perhaps it is the established trend and previous cases that should be criticized.

$10,000.00, $15,000.00 and $20,000.00 cannot be said to be more than a “slap on the wrist” for most large organizations. Admittedly, it is difficult to quantify the harm caused by discrimination, but awards should not be so low that they are seen as a licensing fee to discriminate. General damages should adequately compensate those who have experienced discrimination. Larger awards like this one will certainly impact companies and frankly, they should. Maybe employers will think twice in the future and start to take human rights more seriously.

We can only hope that Ontario will follow suit and move away from the unwritten $15,000.00 standard. In the last year, Ontario has signaled that it may be willing to follow British Columbia’s lead (see Fair v. Hamilton Wentworth District School Board, 2013 HRTO 440 where the Ontario Tribunal ordered $30,000.00 in general damages).

Citation

Kelly v. University of British Columbia, 2013 BCHRT 302 (Click here for a full copy of the decision)

Employer Who Fails to Understand the Reality of Gender Transition (Gender Identity) Found to have Discriminated

Posted: December 29, 2013 in Duty to Accommodate, gender identity, Human Rights Tribunal of Ontario
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Vanderputten was hired by Seydaco Packaging Corp. as a general labourer in 2003. After working for Seydaco for a number of years, Vanderputten was accepted into the gender identity clinic at CAMH and began her transition from living as a man to living as a woman. Vanderputten later changed her first name to Maria, underwent hormone treatment followed by genital reconstruction surgery.

As Maria was transitioning, her coworkers took notice, and she was subjected to harassment in the workplace. Employees at Seydaco changed into work uniforms prior to the start of their shift. Maria asked management to modify her shift hours so she could change privately, without her male colleagues present, who would often make inappropriate comments to her. Seydaco refused her request. The Tribunal stated at paragraph 70:

Seydaco failed to consider, explore, or implement any solutions that would have allowed the applicant privacy while changing, despite the fact that she told them about the problems she was experiencing…

At the very least this amounts to a violation of the procedural component of the duty to accommodate. In a 47,000 square foot plant, it’s highly unlikely Seydaco could not have arranged for Maria to change, away from her male colleagues. Seydaco failed to understand Maria’s reality. It insisted that Maria would be treated as male until her transition was completed and she was able to provide medical verification that she was female. Associate Chair David A. Wright, as he then was, found that Seydaco had discriminated against Maria, stating at paragraph 66:

Insisting that the applicant be treated in the same manner as men until her transition was fully complete was discrimination. It failed to take into account the applicant’s needs and identity. The insistence that a person be treated in accordance with the gender assigned at birth for all employment purposes is discrimination because it fails to treat that person in accordance with their lived and felt gender identity. For non-transferred people, their identity will reflect the sex assigned at birth based on their genitals. However, for transferred people, insisting on their treatment in accordance with their birth gender for all purposes is discriminatory because it fails to take into account their lived gender identity.

The Tribunal ordered that Seydaco pay $22,000.00 in general damages to Maria, lost wages for a period of 8 months, and further ordered that Seydaco obtain an expert, at its own expense, to develop and implement a human rights policy, as well as train all management employees on how to administer the policy. In determining the appropriate length to award lost wages for, the Tribunal stated at paragraph 93:

In deciding how long lost wages should in order to put the applicant in the position she would have been had the discrimination not occurred, I take into account the fact that she had a discipline record that may have led to further discipline unconnected with prohibited grounds, the applicant’s seven years of services (with a brief gap), the notorious fact that in 2010 the economy was experiencing a downturn, and the fact that at the time she was dismissed she was undergoing the process of sex reassignment, which would have made finding a job harder, given general prejudice in society against transgendered persons.

Associate Chair Wright recognized, quite correctly, that discriminatory attitudes at large impact Trans persons’ ability to obtain alternative employment. The length of time that Maria would be provided lost wages for was increased due to this troubling reality. As Trans issues gain popularity and more cases make their way before courts and tribunals, we can only hope that employers will deal with issues that may arise respectfully and sensitively, ensuring that all employees in Ontario are able to work safely and with dignity, regardless of gender identity. In the meantime, until discriminatory attitudes are eliminated, the HRTO should continue to deal harshly with ignorant and insensitive employers.

CASE CITE: Vanderputten v. Seydaco Packaging Corp., 2012 HRTO 1977