Despite their stated importance, traditionally it has been relatively inexpensive for employers to breach employees' human rights. While one can argue that the violation of dignity and human rights should not have a price, the law has only blunt tools to address such unlawful behaviour. In a recent decision the Human Rights Tribunal of Ontario (HRTO) appears to have been sharpening its tools to address egregious behaviour by employers.
Jose Pratas, the owner of Presteve Foods Ltd. which operated a fish processing plant in Wheatley, Ontario, used temporary foreign workers ("TFWs") from Mexico in Presteve's operations. He provided them with accommodation and employment paying them more than they could earn in Mexico. Two workers, referred to in the decision as "O.P.T." and "N.P.T.", travelled to Canada for better opportunities and, in the case of O.P.T. to support her two children following the death of her husband in Mexico. Consistent with most TFWs, their permits to work in Canada were restricted to working for one employer; in their case, Presteve. Accordingly, they were extremely vulnerable to Presteve and its owner. At his whim, they could be repatriated (deported) to Mexico.
The HRTO Adjudicator found that Pratas engaged in criminal sexual assault (far beyond merely unwanted touching), sexual propositions, violence and threats of deportation against O.P.T. and N.P.T. if they did not comply with his demands. Pratas ultimately sent N.P.T. back to Mexico as a result of her refusal to comply. Although represented at the hearing by counsel, neither Pratas nor Presteve offered any evidence which contradicted the horrific stories told by O.P.T. or N.P.T. As a result, the HRTO determined that both had been discriminated against and were entitled to damages.
While the Decision is important for several reasons, including the light it shines on the vulnerability of female TFWs, it serves as a reminder that damages awards for breaches of dignity and human rights are on the rise and can no longer be considered a "license fee" to engage in unlawful behaviour. The Tribunal reviewed the awards in several prior cases, some involving behaviour equally egregious but not directed toward vulnerable TFWs, which ranged from $16,000 to $50,000 for blatant sexual harassment and, in some cases, sexual assault. Identifying that both respondents were highly vulnerable due to their TFW status, the Tribunal chose to award $150,000 to O.P.T. and $50,000 to N.P.T. Some reports suggest the award to O.P.T is twice the previous highest award in Canada.
Whether it is twice the previous high water mark or not, the awards to both complainants are instructive to employers and counsel in several ways:
- The relative vulnerability (powerlessness) of the victim appears to have influenced the amount of damages. This raises a question as to whether these awards are more "punitive" than compensatory. The adjudicator acknowledges that the case law is clear that the awards are to be the latter and not the former;
- It is hard to imagine a worse set of facts than those of O.P.T. (widow supporting young children, TFW subject to deportation at the whim of the employer and sexual assault). Accordingly, it would appear that the "price" of an egregious violation of the human rights of a non-TFW is not likely to rise much beyond what Presteve was ordered to pay. If damages do rise, they will likely do so slowly; and
- There is a growing gap between the awards by courts ($15-$25,000 range) and those issued by the HRTO. The HRTO has shown its willingness to make substantial awards, while the Ontario Courts have yet to be presented with the opportunity to assess damages in a case where they have found sexual assault as part of the discriminatory behaviour. We don't yet know whether courts will punish egregious behaviour as harshly as has the HRTO in this case.
The Presteve decision comes at a time when TFWs have been in the media and portrayed as the tools used by unscrupulous employers to lower costs at the expense of Canadian workers. While the employers have been criticized, there has also been resentment directed toward the foreign workers themselves. The cases of N.P.T and O.P.T are stark reminders of the high price some immigrants and foreign workers feel they must pay to retain desperately needed work in Canada.