Written on behalf of Peter McSherry
Claims of workplace sexual harassment can allow for very powerful remedies. It is important to understand how such cases may be advanced.
In Ontario, there are two human rights tribunals which may have jurisdiction, one being provincial and the second federal. Most businesses are subject to Ontario law. Federal law, which has important differences on this subject, applies to industries such as banking, air lines, public broadcasting by television and radio, transportation of goods between provinces and public harbours to name the most notable. Approximately eleven percent of Ontario workers are covered by federal law.
Responsibility of the Employer
Ontario human rights law generally makes the employer responsible for the wrongful acts of its employees. The one glaring exception is sexual harassment. For that reason, a complaint must be made against the individual accused of the wrongdoing. In certain situations where the alleged offender may be shown to be influential in the company’s direction sufficient to be the “directing mind” of the company, then the company can also be held liable for the complaint. Typically the victim will name, in that example, the individual and the company in the case.
Federal law takes a different view of this issue. It does have a “deeming” provision making the employer responsible for all offensive conduct of its employees. It then adds, however, the right of the company to show what is, in essence, a “due diligence” defence. It must show that (1) it did not consent to questioned conduct, (2) and it used all due diligence to prevent the event and (3) did all it could to minimize or avoid the adverse consequences.
Damages for Sexual Harassment
Ontario human rights law has no cap on the damage sum to be awarded as compensation for damages to self-respect and dignity. The sums awarded will vary dependent on the gravity of the misconduct and the degree of emotional harm suffered by the victim. Broadly speaking, the sums granted tend to be in the range of $10,000 to $50,000. One exceptionally unattractive case awarded $150,000 to a woman who was an immigrant farm worker from Mexico, whose right to work and remain in Canada was dependent upon her employment. The employer had forced her to submit to his sexual demands with full knowledge of her vulnerability. A co-worker, in similar circumstances, received $50,000. The award of $150,000 is unparalleled.
Federal law sets a cap by statute on damages for a human rights breach of $20,000. Where the conduct is wilful or reckless, an additional sum of “special damages” may be granted up to $20,000. Sexual harassment cases typically attract awards of this nature in the federal process.
In addition, both jurisdictions allow for claims of lost income due to the offensive conduct and also reinstatement. A future income loss may also be awarded where reinstatement is not granted.
To make matters more complicated, an employee can alternatively sue in civil court for tort damages for assault, battery, breach of fiduciary duty, and the intentional infliction of mental distress and/or harassment. The general damage awards for emotional distress tend to be significantly higher than the sums awarded in human rights tribunals. One Ontario case recently granted $300,000 for such a damage claim. Similar claims for lost income and future loss can also be made. Future loss income claims tend to be awarded more frequently and in higher sums in civil court. A case in Calgary granted $500,000 for future lost income claim. A tort claim will not allow for reinstatement. Punitive damages which are not allowed by human rights tribunals under this name can be claimed in the civil tort action without a cap.
Human rights cases, however, offer lower more flexible standards of proof.
If this is complex so far, consider that Ontario now allows for a civil claim to be brought to seek a human rights remedy, basically human rights law by a judge in civil court. Such an action requires a companion claim, which is usually, but need not be wrongful dismissal.
What Does This Mean for Employees?
It is painfully evident that any claim for sexual harassment should be brought with proper legal advice. This paper serves to but only highlight the fundamental issues. Not every example of sexually harassing conduct may be result in a significant award.
Should you find yourself in such a difficult position, get advice before you act. Contact the offices of Guelph employment lawyer Peter McSherry. We can help you determine whether you may have a claim due to sexually harassing conduct and if so, what remedy to seek. Contact us online or by phone at 519-821-5465 to schedule a consultation.
 The Federal law allowing for “special damages” does echo this theme