Two weeks ago, I wrote a blog about a vulnerable, low paid employee who obtained $ 150 000 from her former employer by filing a complaint under the Ontario Human Rights Code.
This week, I am writing about a vulnerable, low paid employee who obtained $ 300 000 from her former employer using Ontario’s court system.
Short service employee earning $ 28 000 a year is awarded $ 300 000 in damages
In Silvera v. Olympia Jewellery Corp., a 47 year old administrative employee who earned $ 28 000 a year was sexually harassed/assaulted at work on three occasions. Then she was fired after less than 2 years service because she was unable to work due to pain caused by dental surgery.
As far as the sexual assault is concerned, the women’s supervisor grabbed her breasts on one occasion, he grabbed her buttocks on another occasion, and he tried to grab her breasts on the third occasion. The supervisor knew the employee had been sexually abused by a step-father when she was a child.
She commenced an action on Ontario’s Superior Court.
The Damage Award
An Ontario trial judge awarded the employee the following damages for sexual assault and battery:
$ 90 000 for general and punitive damages
$ 43 000 for future therapy care
$ 34 000 for future lost income
The judge also awarded her the following damages for wrongful termination:
$ 7 500 for pay in lieu of reasonable notice
$ 15 000 for aggravated damages
$ 10 000 for punitive damages
$ 58 000 for lost income
Furthermore, the judge awarded the employee $ 30 000 for breach of the Human Rights Code. To my knowledge, this is the highest general damage award that a judge has ordered for a violation of the Code. The judge did not however provide any analysis or refer to any other cases when assessing these damages.
The judge also ordered the employer to pay the employee’s daughter $ 15 000 for loss of care, guidance and companionship under the Family Law Act. To my knowledge, this is the first time a judge has ordered these kind of damages in a wrongful dismissal case.
Will this case be Appealed?
It will be interesting to see if this case is appealed. In this regard, it appears that the trial judge in this case may not have exercised the kind of restraint that the Supreme Court of Canada urged in the 2008 Honda Canada Inc. vs. Keays decision where trial judges were cautioned: “The Court must avoid the pitfall of double‑compensation or double‑punishment that has been exemplified by this case.” If this case is not appealed, I expect employee lawyers will be claiming additional damages in these kinds of cases in the future.
Lesson to be learned:
Damages for sexual harassment are starting to increase significantly. Every employer should therefore have a written no discrimination policy with a complaint procedure.
For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on human rights issues. If you have any questions, you can contact him at 416 317-9894 or at [email protected]
In February 2017, after a 40 day trial, an Ontario trial judge ordered the RCMP to pay Peter Merrifield $100,000 in general damages, $41,000 in special damages, and $825,000 in legal costs. In doing so, the trial judge recognized the tort of harassment. For my blog on...read more
Wrongful Dismissal Update: How to Reduce Termination Pay for Employees Who Earn Variable Compensation
Some employees receive a large percentage of their total compensation in variable compensation. A much litigated issue is whether the employer is required to pay variable compensation to a terminated employee during the applicable notice period and if so how is this...read more
An arbitrator who upholds a grievance can reinstate the employee, or order the employer to pay the employee damages. In a 2018 arbitration case, Arbitrator Surdykowksi decided how to calculate damages for an employee who was not reinstated. Facts Dr. Bernard was a...read more