Posts Tagged ‘Human rights’

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.

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[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)

3D Man Showing Like Thumbs Up isolated over white background

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.

Surrounded

David and Goliath: Unrepresented Applicants versus Represented Respondents

Monetary Awards are Relatively Small

The vast majority of applications before the Tribunal do not result in significant monetary settlements or awards. There are exceptions of course (for example, see Fair v. Hamilton-Wentworth District School Board where the Tribunal ordered in excess of $425,000.00 in damages). Significant monetary awards are the exception rather than the norm however.

The Majority of Applicants are Self-Represented

Because awards are relatively small and many applicants are often unemployed at the time they contemplate bringing an application, many applicants simply cannot afford to hire lawyers who charge significant hourly rates. Perhaps this is the reason why many applicants are unrepresented. Last years for example, approximately 76% of Applicants were unrepresented at the time they filed their Application. This contrasts starkly with respondents, the majority of who have legal representation right from the start.

Access to Justice?

This presents a significant barrier to access to justice. Applicants who believe they have experienced discrimination are often left to fend for themselves in a process that is not always easy to navigate (although the adjudicators at the Tribunal are sensitive to this fact and often take steps necessary to help self-represented applicants understand the process). The impact is intensified when these unrepresented applicants are then pitted against experienced Respondent-side legal counsel. Talk about David and Goliath. Unfortunately, in the human rights context, David is too often unsuccessful.

At the very least, applicants should consult with an applicant-side human rights lawyer to discuss their case prior to drafting the Application. It is important that applicants understand the process, what the various grounds include, and what they must prove in order to be successful. This should be understood from the outset to avoid making costly mistakes right from the start. Ideally, applicants should be afforded quality legal representation to represent them through the process and ultimately at a hearing if it comes to that (keeping in mind that the majority of matters settle without the need for a full hearing).

Alternative Fee Arrangements – Applicants CAN Afford a Human Rights Lawyer

Many applicants however are under the assumption that lawyers cost several hundred dollars per hour. While this is true for some lawyers it is not always the case. Most human rights lawyers could not sustain an applicant-side practice charging hefty hourly rates. When seeking legal representation, applicants should be aware of alternative fee structures. Most lawyers who are passionate about social justice will be open to different arrangements. Some of these may include:

1. Contingency Fee Arrangement — The fee paid to the lawyer is contingent upon the amount obtained for the Applicant. For example, if the Applicant does not obtain any amount (i.e. is unsuccessful at a hearing) then the lawyer does not recoup any legal fee. The lawyer essentially shares the risk with the Applicant. Most lawyers will not agree to a straight contingency fee arrangement in the human rights context, but rather are more likely to agree to some combination of hourly rate and contingency fee arrangement.

2. Hybrid Hourly Rate/Contingency Fee Arrangement — There are a number of different combinations that can be agreed to. For example, the lawyer could represent the Applicant on a contingency fee arrangement for all work done short of the hearing (keeping in mind that most matters resolve themselves without the need for a hearing) and then an hourly rate for representation in the hearing if the matter does proceed. Alternatively, a lawyer could charge 50% of their regular hourly rate and take 20% of the amount achieved. In this scenario, the lawyer is assuming some of the risk with the Applicant by offering a reduced hourly rate in exchange for a percentage of any amount obtained.

3. Hourly Rate Arrangement — Of course there is the straight hourly rate where the Applicant is charged a set rate for every hour the lawyer expends on the Applicant’s behalf.

4. Flat Fee Arrangement — Under this arrangement the Applicant and lawyer agree to a flat fee in advance for all work done on the Application. There are also hybrid flat fee arrangements – for example, some lawyers will agree to a flat fee for all work done short of the hearing and then an hourly rate for representation during the hearing (again keeping in mind that the majority of matters resolve themselves prior to a hearing).

It is worthwhile for applicants to think about fee structures prior to their consultation. What fee structures a lawyer may agree to will be dependent on the size of the lawyer’s practice, the number of clients they have, their particular law firm, etc. It is important that applicants feel comfortable with the lawyer they choose to represent them. Remember, all lawyers are different in terms of the retainer and fee structure they are willing to enter into. You should be able to find quality legal representation under terms that you can afford.

If you require assistance with your human rights matter or would like to book a legal consultation please contact Wade Poziomka.