Justice is served: The Human Rights Tribunal of Ontario sends a strong message that there is no room for sexual assault and harassment in the workplace

When it comes to sexual harassment and assault in the workplace, the discussion often centres around seeking accountability against the perpetrator through criminal and civil processes. However, in the more recent years, the Human Rights Tribunal of Ontario (‘HRTO’) has become an increasingly effective forum for victims to be heard and have their experiences validated and appropriately compensated. In a recent case, G.M.  v. X Tattoo Parlour, the HRTO has reinforced that sexual harassment and assault in the workplace is not acceptable and that it will continue to award victims high damages for injury to dignity, feelings and self-respect.

Facts[1]:

The applicant was a 15-year-old who had an interest in becoming a tattoo artist. The respondent, a close family friend, had a tattoo parlour. He agreed to allow the applicant to volunteer so that she could gain experience and earn her mandatory volunteer hours. Shortly after the applicant started working at the tattoo parlour, the respondent inquired about her gender preferences, favourite positions in bed and what sexual activities she enjoyed. The applicant did not participate voluntarily in these discussions. She found excuses when he asked her about “soliciting [her] body”, reminded him that he had a wife and told him that she had a girlfriend.

On August 27, 2014, the respondent sexually assaulted the applicant in the tattoo parlour after other staff had left for the evening. The applicant’s mother found out and reported the sexual assault to the police. The respondent was subsequently charged with sexual assault, invitation to sexual touching and sexual interference and pled guilty to these counts. The respondent was sentenced to prison, a further period of probation and other conditions. 

The applicant then decided to pursue the matter at the HRTO. Her application alleged discrimination with respect to employment because of sex, sexual harassment, sexual solicitation or advances, gender identity and age contrary to the Human Rights Code, R.S.O. 1990.  At the hearing, the applicant described the impact of the experience on her mental health and the difficulties that she now has in trusting men. The remedy that the applicant sought was compensation in the amount $75,000.00, as well as an order that the respondent receive training in human rights and sexual harassment in the workplace. 

In her decision, Vice-Chair Maureen Doyle stated that “upon review of the evidence, and for the purposes of assessing a remedy under the Code, 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 and arising from the respondent’s actions.” She found that the applicant experienced a sense of victimization and was extremely vulnerable as she was a minor. She found the respondent’s conduct to be egregious and a serious violation of her rights. As a result, she found that the applicant’s request for an order for $75,000.00 as compensation for injury to dignity, feelings and self-respect, was warranted.    

According to Beth Walden, the applicant’s lawyer from the Human Rights Legal Support Centre, “we are really happy that damages in this case were higher than previous sexual harassment cases. The Tribunal used a human rights lens by considering the power imbalance between the parties including the age of applicant and her vulnerability as an unpaid intern. The higher award recognized the seriousness of the conduct of the respondent and his abuse of his power. The experience at the HRTO was very empowering for my client and she feels that justice was served. I hope that more victims of sexual harassment in the workplace will consider the HRTO as an alternative forum for seeking justice." 

The higher damages award in this case illustrates how the HRTO is an effective option for victims of sexual harassment and assault in the workplace. As a matter of fact, shortly after the hearing in this matter, the Tribunal in A.B. v. Joe Singer Shoes Limited awarded the applicant $200,000.00 in damages as compensation for injury to dignity, feelings and self-respect[2], which is now one of the highest amounts awarded since the O.P.T. v. Presteve Foods Ltd.[3] (‘Presteve’) decision. 

The Presteve decision was one of the first cases where the HRTO made a large damages award. According to Bruce Ryder and Audra Ranalli, ‘significant concerns have been raised in recent years that these damages awards, typically referred to by the Tribunal as general damages, are generally too low to properly reflect the importance of equality rights and, thus, do not adequately compensate those who have endured the harm of discrimination.”[4]  Andrew Pinto, a well-known human rights lawyer, conducted a review into the Ontario human rights system and suggested that “in order for Tribunal awards to be meaningful, I recommend that the Tribunal significantly increase the range of damages that are awarded to successful applicants.”[5]

 

It appears that the HRTO has taken this suggestion into consideration and has demonstrated that it is prepared to grant higher awards to victims of sexual harassment and assault in the workplace. The Tribunal is making a strong statement that sexual harassment and assault is not something that will be tolerated by our justice system. The significant financial consequences of these decisions for employers, should help deter employers that perpetrate or ignore such conduct in the workplace. In light of this decision and the more recent #MeToo movement, it will be interesting to see whether more victims of sexual assault and harassment in the workplace will come forward and pursue remedies at the HRTO. 

About the author

Tavlin Kaur is a Member-at-Large for the Public Sector Lawyers Executive Committee and the Constitutional, Civil Liberties and Human Rights Executive Committee. 

 

*A version of this article first appeared on the OBA’s Public Sector Lawyers blog.