Posts Tagged ‘Ontario Human Rights Tribunal’

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.

Employer to Pay $70,000 + for Terminating an Employee Who Made UNFOUNDED Allegations of Discrimination

Posted: August 4, 2013 in Reprisal
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Employers can be liable for reprising against an employee who makes an allegation of discrimination in the workplace – even if the allegation is unfounded.

The Human Rights Tribunal of Ontario recently released its decision in Morgan v. Herman Miller Canada Inc. Aldeen Morgan worked for Herman Miller Canada Inc. from 2007 until 2010. Morgan alleged that his employer had discriminated against him on the basis of his colour by assigning him demeaning tasks, inappropriately disciplining him and ultimately firing him for complaining about the mistreatment he had been experiencing.

Vice-Chair Geneviève Debané found that Morgan had failed to establish that his employer had discriminated against him on the basis of his colour. The allegations of discrimination were unfounded, however Vice-Chair Debané found that Morgan genuinely believed his employer had infringed his Code rights.  Debané found that Herman Miller had failed to address the complaint, and rather terminated Morgan because of his allegations. In doing so, Debané found that Herman Miller had reprised against Morgan contrary to the Code and ordered in excess of $70,000.00 in damages.

This decision has received substantial criticism because the decision “awards significant human rights damages to an individual who had not been discriminated against in any way”. It has been called “disturbing” in a recent article by an employment lawyer. Another blogger stated:

In our time, this is what “human rights” has come down to …. punishing his employer not for treating him unfairly, but for refusing to kowtow to his threats…

Protecting employees who raise genuine concerns in the workplace related to human rights is not disturbing. What would be disturbing, in my opinion, is to allow employers to terminate employees who genuinely believe they have experienced discrimination in the workplace and who have had the courage to come forward and voice their concerns. Employers have a duty to investigate. In the absence of malice or ill intent in making the complaint, employees should be protected from reprisal. Vice-Chair Debané came to the proper conclusion in this decision.

Case Citation: Aldeen Morgan v. Herman Miller Canada Inc. and Corrado Fermo, 2013 HRTO 650

What Questions Can an Employer Ask an Employee with a Disability?

Posted: July 21, 2013 in Disability
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Employees within Ontario have the right to be treated equally in employment, without discrimination, on the basis of a number of grounds which are set out in section 5 of the Ontario Human Rights:

• Race;
• Ancestry;
• Place of origin;
• Colour;
• Ethnic origin;
• Citizenship;
• Creed;
• Sexual orientation;
• Gender Identity;
• Gender expression;
• Age;
• Record of offences;
• Marital Status;
• Family Status, and
• Disability.

This article deals specifically with the ground of disability. The duty to accommodate is triggered for employers when the employer knows or ought reasonably to know that the employee had a disability.

It is discriminatory to use the application process to screen prospective employees on the basis of disability. In this respect, employers are not permitted to ask questions that reveal information about a Code ground. For example, an employer cannot ask a prospective employee if he or she has a driver’s license if a driver’s license is not an essential element of the job description. Even where a driver’s license is an essential element of the job description for which the employee is interviewing, the employer cannot ask to view the driver’s license or photocopy it. To do so would give the employer information about the employee’s age for example, a protected Code ground. Instead employers should include a statement on the application that a driver’s license is required for an essential element of the position and successful applicants will need to prove they possess a driver’s license.

Upon learning that an employee has a disability, employers have a duty to accommodate short of undue hardship. The duty to accommodate is a two-way street. Employees have an obligation to provide employers with information necessary to determine appropriate accommodation. In some cases, employees will provide their employer with a medical note stating a generic line such as “For medical reasons, Joe can no longer perform his duties as labourer and should instead be moved to the position of reception for a period of two months”. The Tribunal has stated on a number of previous occasions that generic statements are insufficient. It is not the role of a doctor to identify the specific job an employee can perform. Rather, the doctor’s role is to identify the patient’s physical or mental restrictions or the specific disability related accommodated required. The employer should use that information to determine whether and how it can accommodate the individual in the specific workplace in question. The obligation is on the employer to accommodate to the point of undue hardship. When the employer receives a generic medical note, they may request additional information from the employee. Determining the appropriate questions however is the challenge.

The Human Rights Tribunal of Ontario (“HRTO”) has made it clear that employees are expected to waive some privacy in order to open an accommodation dialogue. Generally, employers do not have the right to ask what the diagnosis is, but rather may seek information about the employee’s functional limitations in order to determine how those limitations can be accommodated in the specific workplace. In 2009, the HRTO clarified the information employers are entitled to, stating:

For the purposes of a request for employment accommodation, generally the focus should be on the functional limitations of the employee’s condition (capacities and symptoms) and how those functional aspects interact with the workplace duties and environment. Consequently, an employer need not be informed of the specific cause of the employee’s condition or the exact diagnosis in order to be put on notice that an employee has disability-related needs requiring accommodation…

In order to trigger a duty to accommodation, it is sufficient that an employer be informed of the employee’s disability-related needs and effects of the condition and how those needs and effects interact with the workplace duties and environment. As such, an employee does not necessarily have to disclose a detailed diagnosis of the disability in order for an employer to respond to a request for accommodation…

The Tribunal has found that employees have failed to establish a prima facie case of discrimination in cases where employees fail to provide necessary information to employers. There is often a fine line between inappropriate and appropriate requests for medical information. Be safe and consult a lawyer practicing in human rights law prior to refusing to provide medical information.

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