Written on behalf of Peter McSherry
Employers across Canada frequently rely on the Temporary Foreign Workers (“TFW”) Program to fill job vacancies for which they cannot find qualified Canadians. Despite these workers’ crucial role in the Canadian economy, they are often subjected to poor working conditions and abuse by employers. However, due to their precarious work status, temporary foreign workers are often reluctant to formally complain about such treatment. A recent Ontario Superior Court of Justice decision offers a particularly egregious example of a temporary foreign worker subjected to similar treatment.
Skilled labourer granted status as temporary foreign worker
In Osmani v Universal Structural Restorations Ltd, the plaintiff worker was born in Albania and arrived in Canada in 2017. He was hired by a construction company “off the books,” initially without temporary foreign worker status. In 2019, he was issued a work permit under the TFW program and subsequently entered into an employment contract with the defendant employer.
Worker sustains serious injury at the hands of his managing supervisor
During his employment, the plaintiff was subjected to harsh and demeaning treatment by his manager. This treatment involved racist insults and threats to “send him back” referring to his precarious immigration status before receiving his work permit.
On one occasion, the plaintiff’s manager became angry with him and punched him in the groin. The altercation resulted in a significant injury to the plaintiff and he was required to have one of his testicles removed. Despite this traumatic incident, the plaintiff continued working for the defendant.
Worker falls from ladder in workplace accident
Several months later, the plaintiff fell from a ladder on the job. He was in a significant amount of pain, yet his manager did not provide any first aid treatment or call an ambulance. The manager stated that the company could not afford another Workplace Safety and Insurance Board claim.
After spending some time recovering at home, the plaintiff’s manager came to see him and asked him to return to work. The plaintiff reluctantly acceded. Upon his return to work, his manager began to assign him duties that his doctor had specifically instructed him not to perform. Claiming that his work conditions had become intolerable, the plaintiff quit his job.
Worker brings legal claim against employer and manager
The plaintiff commenced legal action against his employer and the manager, seeking compensation for his physical injury and how he was treated. Among other claims, the plaintiff sought:
- damages for unpaid wages, severance pay, and loss of health benefits;
- damages for violations of the Ontario Human Rights Code;
- damages for the tort of human trafficking; and
- aggravated and punitive damages for the manner of his dismissal and the treatment he was subjected to.
Court awards general and punitive damages for tort of battery
In its analysis, the Court considered whether the employer and manager should be held liable for assault and battery. The Court found that the test for battery was easily met, as the manager’s strike was intentional and delivered with enough force to cause harm.
Finding that the strike to the plaintiff’s groin caused him significant medical injuries and seriously impacted his mental health and enjoyment of life, the Court awarded $100,000 to the plaintiff in general damages. Additionally, the Court determined that the manager’s conduct was so egregious that it warranted denunciation and punishment, awarding $25,000 in punitive damages against the manager personally.
Employer held vicariously liable for torts of assault and battery
The plaintiff claimed that the manager routinely threatened to hit and slap him throughout the course of his employment, constituting assault. The Court held that, because the comments occurred after the manager had already struck the plaintiff, it was objectively reasonable for him to think that the threatening comments might lead to further physical assault. Accordingly, the Court awarded $10,000 in general damages.
The Court also considered the plaintiff’s claim that the employer should be held vicariously liable for the assault and battery. Applying the principles set out in Bazley v Curry, the Court concluded there were grounds to find the employer vicariously liable. The battery did not simply occur in the employer’s workplace, instead, the employer created a scenario where the manager was in direct control of the plaintiff. Further, the employer did little to investigate or punish the manager for his behaviour towards the plaintiff.
Court concludes that plaintiff was constructively dismissed
Acknowledging that an abusive work environment can lead to a constructive dismissal, the Court applied the test set out in Shah v Xerox Canada Ltd. The Court concluded that viewed objectively, a reasonable person in the plaintiff’s position would conclude that his employer did not intend to be bound by the employment contract by making his continued employment intolerable.
The Court identified three reasons for reaching its decision:
- The employer engaged in a series of acts that poisoned the workplace and undermined the employee-employer relationship. For example, failing to respond to the plaintiff’s complaints about his manager;
- After the plaintiff’s fall from the ladder, the employer crafted a false narrative to shift blame to the plaintiff; and
- When the plaintiff returned to work after his injury, he was placed back under the supervision of the same manager.
The Court awarded the plaintiff four months’ worth of severance pay, $75,000 for bad faith termination of employment and $25,000 in punitive damages.
Employer held liable for violating plaintiff’s human rights
The plaintiff also alleged that the employer violated multiple provisions of Ontario’s Human Rights Code (the “Code”). In addressing the plaintiff’s human rights claims, the Court reaffirmed that section 5 of the Code requires an employer to investigate allegations of workplace harassment. The Court held that the employer had failed in this regard which amounted to discrimination under the Code.
Further, the Court determined that the plaintiff’s manager had engaged in acts of harassment and sexual harassment toward the plaintiff. He repeatedly engaged in inappropriate and offensive conduct towards the plaintiff, who was in a vulnerable position given his status as a temporary foreign worker. The Court awarded the plaintiff $50,000 for his employer’s breaches of the Code.
Court dismisses plaintiff’s human trafficking claim
The plaintiff sought damages from his employer for the tort of human trafficking, contrary to the Prevention of and Remedies for Human Trafficking Act. Human trafficking is defined as a person exercising control, direction, or influence over the movements of a person for the purpose of exploiting them or facilitating their exploitation. The Court dismissed the claim noting, among other things:
- the plaintiff was a paid employee of the employer;
- the plaintiff’s pay and work conditions were on par with his co-workers; and
- there was no evidence that the employer intended to exploit or facilitate the exploitation of the plaintiff.
Even though the claim was dismissed, the decision confirms that the tort of human trafficking applies to instances of labour trafficking and is available to employees. In addition, it emphasizes the increased focus on labour standards for vulnerable workers, including low-wage workers with temporary immigration status.
Peter A. McSherry Helps Employees Assert Their Right to Fair Treatment in the Workplace
Peter A. McSherry has over 15 years of experience helping clients deal with various employment law matters. As a law firm exclusively dedicated to employment law, our team frequently helps employees manage and resolve issues related to constructive dismissal and severance packages. If you have been subjected to harassment or discrimination at work, we can provide you with a case evaluation and help you understand your options while protecting your best interests. Contact us online or by phone at 519-821-5465 to speak with a member of our team about your employment law questions.