Saturday, 20 June 2015

HRTO Awards $150,000 to Temporary Foreign Worker following Sexual Assault by Employer

The Human Rights Tribunal of Ontario has ordered an employer to pay $150,000.00 to a former temporary foreign worker after finding that the owner and principal of the company had engaged in a series of prolonged unwanted sexual solicitations and advances against her, including sexual assaults.

O.P.T. v. Presteve Foods Ltd., 2015 HRTO 675 (CanLII), now stands as the present ‘high-water mark’ for damages as compensation for injury to dignity, feelings and self-respect.

Facts

The facts of the case were summarized by HRTO Vice-Chair Mark Hart, generally as follows:

O.P.T. and M.P.T. were temporary foreign workers who came to Ontario from Mexico to work for the corporate respondent, Presteve, which operates a fish processing plant in Wheatley. The personal respondent was the owner and principal of Presteve at that time. O.P.T. and M.P.T. alleged that during the course of their employment with Presteve, they were subjected to: unwanted sexual solicitations and advances by the personal respondent, including sexual assaults and touching; a sexually poisoned work environment; discrimination in respect of employment because of sex; and reprisal.

More specifically, O.P.T. alleged that the personal respondent invited and took her out to dinner on many occasions when she did not want to go. She alleged that she felt compelled to do so under threat that the personal respondent would send her back to Mexico if she refused. She also alleged that the personal respondent told O.P.T. that he loved her and offered financial assistance for her children and housing for her in Mexico, which O.P.T. did not invite or accept. She further alleged that in the car while taking her out, the personal respondent did the following: on two or three occasions, he touched her legs over her clothes up to her vagina; on one occasion, he told her to pull her pants down and touched her bare legs and her vagina over her underwear; and on another occasion, the personal respondent undid his zipper and pulled her hand into his pants to touch his erect penis. O.P.T. alleged that she did not want to do these things but felt compelled to do so due to threats that the personal respondent would send her back to Mexico.

O.P.T. alleged that on several occasions in the personal respondent’s office at the plant, the personal respondent touched and squeezed O.P.T.’s breasts over her clothing; that on one occasion he forcibly hugged and kissed her; and that she did not invite or want him to do these things. She further alleged that at the house in Leamington where she was housed with the other female migrant workers from Mexico, the personal respondent forcibly hugged and kissed her, told her to suck his penis on three occasions, and penetrated her with his penis on three other occasions. O.P.T. alleged that she did not invite or want to do these things but felt compelled to do so due to the personal respondent’s threats to send her back to Mexico.

M.P.T. alleged that on her first day of work at Presteve, the personal respondent slapped her on the buttocks; that on two occasions in the personal respondent’s office at the plant, the personal respondent touched her breast over her clothes; that on two occasions when in the car with the personal respondent when travelling to and from a doctor’s appointment, the personal respondent sexually propositioned her and touched her on her thigh while doing so; that prior to the second appointment, the personal respondent also sexually propositioned her; and that sometime in March 2008, the personal respondent told her that she could not go out for a coffee and threatened to send her back to Mexico if she did, stated that she needed to apologize to him for being disrespectful, and sent her back to Mexico in early April 2008 when she refused to do so.

Criminal charges were laid against the personal respondent in relation to certain of the allegations raised by various applicants, including O.P.T. and M.P.T. The HRTO proceeding was deferred pending the result of the criminal proceeding, which concluded on March 1, 2011.

Decision

In his lengthy reasons for decision, Vice-Chair Mark Hart made the following findings critical to this post:

[168] On the basis of these factual findings, I find that the personal respondent engaged in a persistent and ongoing pattern of sexual solicitations and advances towards O.P.T. during the period of her employment with Presteve. I find that, as the owner and principal of Presteve at that time, the personal respondent was a person in a position to confer, grant or deny a benefit or advancement to O.P.T., and that he expressly wielded this authority by threatening to send O.P.T. back to Mexico if she refused his sexual solicitations and advances. I further find that the personal respondent knew or ought reasonably to have known that these sexual solicitations and advances were unwelcome, particularly in light of the fact that O.P.T. expressly resisted and rejected his solicitations and advances on many occasions. Accordingly, I find that the personal respondent engaged in a pattern of persistent violations of s. 7(3)(a) of the Code during the period of O.P.T.’s employment with Presteve.

[169] In addition, on the basis of the above factual findings, I also find that the personal respondent engaged in a persistent pattern of sexual harassment in the workplace towards O.P.T., in violation of s. 7(2) of the Code. Based upon my factual findings, there can be no question that the personal respondent’s conduct satisfies the definition of “harassment” under the Code and that his conduct was sexual in nature. An issue arises, however, regarding the extent to which his conduct can be regarded as having occurred “in the workplace”. Certainly, the incidents that occurred in the personal respondent’s office at the plant took place in the workplace. In addition, the evidence before me indicates that the personal respondent took O.P.T. to the house in Leamington and sexually assaulted and harassed her there in the context or under the guise of work-related duties, namely overseeing workers at the house to ensure that no property was stolen.

[170] The issue is whether the incidents involving the personal respondent taking O.P.T. out to dinner after work and the sexual harassment in the car also can be regarded as having been “in the workplace”. In my view, it can…

Similar findings were made with respect to the other applicant, M.P.T.

With respect to the issue of the employer’s responsibility for the individual’ actions Vice-Chair Hart wrote the following

[190] With regard to the corporate respondent, the corporate respondent is deemed to be liable for the violations of s. 5(1) of the Code by the personal respondent pursuant to s. 46.3 of the Code as acts or things done by him as an officer, official or employee of the corporate respondent in the course of his employment. As observed by the Supreme Court of Canada in Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84, the term “in the course of employment” does not require that the impugned actions of an employee fall within the four squares of a job description, but means only that these actions are in some way related or associated with the employment within a purposive interpretation of human rights legislation. In the instant case, the personal respondent’s position as owner and principal of the corporate respondent at the time imbued him by virtue of this employment with the power and authority to take the actions that he did against O.P.T. and M.P.T. That is sufficient to ground a finding of liability as against the corporate respondent under s. 46.3 of the Code.

With respect to the award of damages Vice-Chair Hart wrote the following

[215] With regard to the objective seriousness of the personal respondent’s conduct towards O.P.T., it is my view that the seriousness of this conduct is unprecedented in terms of this Tribunal’s previous decisions. While there are previous cases in which a respondent has made unwanted sexual solicitations and advances toward an applicant, has touched an applicant’s thighs and breasts, has forcibly hugged and kissed an applicant, and even one case where a respondent forced an applicant to touch his penis, the personal respondent’s conduct towards O.P.T. in the instant case went far beyond that. In this case, I have found that when alone in the house in Leamington with O.P.T., the personal respondent abused his position of power and authority over her to require her to perform fellatio on him on three occasions and to penetrate her with his penis on another three occasions. O.P.T. felt compelled to comply with the personal respondent’s demands on the basis of his threats to send her back to Mexico, when she needed her job in Canada in order to help support her two children. In my view, the unprecedented nature of the personal respondent’s conduct in this case justifies a very significant award of compensation for injury to dignity, feelings and self-respect.

[216] A very significant award of compensation for injury to dignity, feelings and self-respect also is justified, in my view, on the basis of O.P.T.’s particular vulnerability as a migrant worker, as part of the analysis of the impact of the respondents’ conduct on the applicant referenced in Arunachalam, above. O.P.T. was 30 years old when she came to Canada. Her husband had been tragically killed, and she was left to support her two children. As a temporary foreign worker in Canada, O.P.T. was put in the position of being totally reliant upon her employer. As Dr. Preibisch testified, temporary foreign worker programs in Canada operate on the basis of closed work permits, which only entitle a migrant worker to employment with one designated employer. While theoretically possible to transfer employment to another employer while in Canada, there are significant barriers that make this practically impossible or at least very difficult. As a result, a migrant worker like O.P.T. tends to be reliant upon the employment relationship with the designated employer to a degree that is not experienced by Canadian workers. Migrant workers like O.P.T. live under the ever-present threat of having their designated employer decide to end the employment relationship, for which they require no reason and for which there is no appeal or review, and being “repatriated” to their home country and thereby losing the significant economic and financial advantages of their Canadian employment upon which they and their families depend. In O.P.T.’s case, the personal respondent was repeatedly explicit about this threat to send her back to Mexico if she did not comply with his demands and had demonstrated that he was capable of doing so by repatriating other Mexican women.

[217] O.P.T. was very emotional and often tearful in her evidence before me, and I needed to stop the hearing on a number of occasions while O.P.T. left the room to compose herself during the course of her testimony. O.P.T. testified about how much the personal respondent’s actions had hurt her as a woman and as a person, and described how her chest still hurts when she talks about what he did to her. She also described the tremendous shame that she continues to experience as a result of the personal respondent’s actions, and the impact this has had on her relationship with her current husband. I also have taken into account the fact that I have found the ultimate incident that led to the ending of O.P.T.’s employment with Presteve was an act of gender discrimination following a pattern of repeated and unwanted sexual solicitations and advances, such that O.P.T. properly can be regarded as having suffered the loss of her employment as a consequence of the repeated violations of her rights under the Code.

[218] In my view, the amount of compensation for injury to dignity, feelings and self-respect requested on behalf of this applicant is not unreasonable and is justified, given the unprecedented seriousness of the personal respondent’s conduct in this case, the particular vulnerability of O.P.T. as a migrant worker, and O.P.T.’s personal circumstances and the impact of the conduct on her. Accordingly, in my view, an award of compensation for injury to dignity, feelings and self-respect in the amount of $150,000 as requested on behalf of O.P.T. is appropriate.

[221] As with O.P.T., it is my view that it is appropriate for me to consider M.P.T.’s particular vulnerability as a migrant worker when making this award as part of the analysis of the impact of the respondents’ conduct on the applicant referenced in Arunachalam, above. This factor, in my view, mitigates in favour of an increased award for M.P.T. over and above what has been awarded in previous cases where the conduct at issue was of similar objective seriousness. M.P.T. was only 22 years old when she first arrived in Canada to work for Presteve. While she did not have children at that time, M.P.T. nonetheless dreamed of building a better life for herself as a result of her work in Canada. She described this as being her goal and aspiration. As a result of the nature of the temporary foreign worker programs in Canada, M.P.T. worked under the ever-present threat of being sent back to Mexico if she did not do what she was told, which was made explicit to her by the personal respondent and which ultimately was acted upon by him in a discriminatory manner. Due to the power and authority that the personal respondent wielded over her, M.P.T. was required to endure the personal respondent’s repeated invitations for her to have sex with him and his sexual touching of her thighs, breasts and buttocks. M.P.T. testified about the shame, humiliation and anger that she felt when the personal respondent did this to her. Ultimately, I have found that M.P.T. lost her employment with Presteve and was repatriated to Mexico as a result of an act of gender discrimination in violation of the Code.

[222] In my view, in light of the objective seriousness of the personal respondent’s conduct towards M.P.T. in the context of this Tribunal’s decided cases, the particular vulnerability of M.P.T. as a migrant worker, and the impact of this conduct on her, I find that an award of $50,000 as compensation for injury to dignity, feelings and self-respect is appropriate.

In addition to awarding $200,000.00 in damages as compensation for injury to dignity, feelings and self-respect, the Human Rights Tribunal ordered pre-judgment interest on that amount, plus it ordered the company “to provide any workers hired under the auspices of the temporary foreign workers program with human rights information and training in the native language of any such hire for a period of three years from the date of this Decision.”

Commentary

As set out by Vice-Chair Hart, prior to the decision in Presteve Foods the average amount awarded by the HRTO in similar cases was about $40,000. The most awarded by the HRTO in any of the cases cited by Vice-Chair Hart was $50,000 (Smith v. Menzies Chrysler, 2009 HRTO 1936.)

$150,000, for the HRTO, or for any case in Canada for that matter, is a lot of money for general damages. While Vice-Chair Hart commented that, "the Tribunal’s remedial powers are not punitive in nature" and that, "the purpose of considering the objective seriousness of the respondent’s conduct is not to impose a punitive sanction on the respondent, but rather to consider objective seriousness as a factor in determining the appropriate compensatory award to be made to an applicant", it is difficult not to believe that the HRTO wished to send some directed message to those who will pray on some of the most vulnerable workers in Canadian society.

For some, the issue of temporary foreign workers is a sensitive issue. With respect to the issue of temporary foreign workers in agriculture, Steven Colbert’s testimony before the US House Judiciary Subcommittee on Immigration, Citizenship and Border Security remains my go to:



While some may disagree on whether Canada should allow temporary foreign workers at all, one thing on which one hopes we can all agree is that such workers are among the most precarious of all employees. That the same leaves them vulnerable to exploitation is well recognized. What the decision in Presteve Foods demonstrates is that such exploitation will not go unpunished.

Takeaways for Employees with Labour Pains

If you are a worker in Ontario and are looking for advice on whether you may have a case for a violation of your human rights in employment, the professional, experienced and cost-effective employment lawyers for employees at Ottawa's Kelly Santini LLP would be happy to be of service to you.

Takeaways for Employers with Labour Pains

Ontario’s Human Rights Code affords many protections to workers in Ontario. Employers would be prudent to be aware of what they can and cannot do in employment. And while it should be obvious that sexual assault of one’s workers will never be tolerated (whether those workers be Canadian citizens or not), not every aspect of the law’s protections are equally as obvious.

If you are an employer in Ontario and are looking for experienced, pragmatic, and honest legal advice with respect to your workplace issues, the professional, experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP would be happy to be of service to your business or organization.

Contact Me

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260. You may also use the contact box at the top of this page.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

Sean Bawden, publisher of Labour Pains, can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He is also a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.



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