Wednesday, February 24, 2010

Ontario Human Rights Tribunal Orders Money Mart to Pay $30,000 for Failure to Investigate Harassment

The Ontario Human Rights Tribunal has increasingly become the judicial body to watch for developments in Ontario's employment law.

Most recently, in a decision released February 17, 2010, the Tribunal ordered National Money Mart Company to pay $30,000 in compensation to a former, one-year employee of the company who had been subjected to ongoing, serious sexual harassment by her workplace supervisor.

In its decision, the Tribunal emphasized the employer's failure to investigate serious incidents of harassment at a Money Mart outlet on Danforth Avenue in Toronto, despite repeated reports by the employee, a Customer Service Representative, as to ongoing sexual misconduct by her Branch Manager.

The claim was filed by Marjorie Harriott, a Toronto woman who worked as a customer service representative at a Toronto Money Mart store from April 2007 until she was fired in June 2008.

Harriott told the Ontario Human Rights Tribunal she was sexually harassed by her manager while she worked at a Money Mart store on Danforth Avenue, in the city's east end.

She told the tribunal that her supervisor would leer at her buttocks and breasts, make inappropriate comments, and touch her when there was no need — adding that the harassment was so unbearable that she suffered from panic attacks while she worked there.

Harriott said she and several other women who worked at the store complained repeatedly to the district manager in 2007 and 2008, but the manager didn't investigate the complaints.

The Tribunal's decision serves as an excellent primer on the law of sexual harassment applicable to Ontario's workplaces. Vice Chair Allan Whyte's discussion on the damages award, in particular, provides considerable guidance:

[149] I find that an appropriate total for the damages under the three headings above is $30,000. In my opinion, this is an appropriate level of compensation for the applicant, taking into account the three breaches of the Code involved, and allowing for the fact that I have found that her termination from employment was not an act of reprisal. The applicant submitted certain sexual harassment cases in argument which involved higher awards of general damages: see for example S.H v. M[…] Painting, 2009 HRTO 595 (CanLII), 2009 HRTO 595 (CanLII) ($40,000), and Smith, supra (total of $50,000). However, these cases involved situations either where the applicants left their employment because of the sexual harassment they were experiencing (or were reprised against) and such leaving was found to be tantamount to dismissal, as a result of which the damages were increased. In this case, I have found the termination of the applicant’s employment to not be an act of reprisal.

[150] I have also reviewed two other recent sexual harassment cases, Ratneiya v. Daniel & Krumeh, 2009 HRTO 1824 (CanLII), 2009 HRTO 1824 (CanLII) and Hill-Leclair v. Booth, 2009 HRTO 1629 (CanLII), 2009 HRTO 1629 (CanLII), both of which awarded damages for the infringement of the Code in the amount of $25,000. Neither of those cases contained the elements of poisoned work environment and a failure to investigate. In the Hill-Leclair case, the Tribunal observed as follows:

Historically, sexual harassment under human rights statutes has tended to attract a comparatively higher quantum of damages than simple discrimination, see: Domingues v. Fortino, 2007 HRTO 19 (CanLII), 2007 HRTO 19 (CanLII),2007 HRTO 19 (CanLII), 2007 HRTO 19 (CanLII), Sanford v. Koop, supra; Colvin v. Gillies Hillcrest Variety,2004 HRTO 3 (CanLII), 2004 HRTO 3 (CanLII), 2004 HRTO 3 (CanLII), 2004 HRTO 3 (CanLII). This can be rationalized by the vulnerability of victims, the heightened personal impact and the more severe dignity interests implicated.

[151] In terms of the liability of the respondents, counsel for the respondents agreed that in the event that I found that there was liability for Mr. Wade, the company agreed to be responsible for any such liability. I therefore find that the liability for the harassment and poisoned work environment damages awarded, which I assess at $22,500, is joint and several as between the company and Mr. Wade, whereas the liability for the failure to investigate in the amount of $7,500 is that of the company only.

- Garry J. Wise, Toronto

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