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Posts tagged: Sexual Harassment

Increasing Damages for Sexual Assault in the Workplace

By , June 23, 2018 10:32 am

On average, damages awarded to an employee for a breach of the Human Rights Code, remain relatively low, typically $10,000 to $15,000. The Human Rights Tribunal of Ontario recognizes that low-value awards for discrimination and harassment create a license to discriminate. Following that message, it recently released two significant decisions that reflect a willingness to award higher amounts. Both decisions involve sexual assault and sexual harassment against women in vulnerable circumstances.

In both cases, the owners of the companies were found to be personally liable along with the corporations.

The Cases

In A.B. v. Joe Singer Shoes Limited et al, 2018 HRTO 107, the employee worked for Joe Singer for 28 years.  In a unique situation, the employer was also her landlord. The allegations made by A.B. were of atrocious conduct. She testified that she was forced to perform oral sex, intercourse, and degrading sexual conduct. Her employer watched pornography in his office and also criticized her skin colour, accent, and body. When she eventually reported the assaults to the police, as her landlord the company applied to the Landlord and Tenant Board to evict her and issued parking tickets to her for parking on private property.  Although she had issues with her memory during her testimony, the HRTO still preferred her evidence, and found company and the owner both responsible for the sexual assault and sexual harassment. The HRTO ordered the respondents to pay $200,000 as compensation for injury to dignity, feelings, and self-respect.

Following Joe Singer, the HRTO released G.M. v. X Tattoo Parlour, 2018 HRTO 201. In X Tattoo, the applicant was a 15-year-old woman whose employer engaged in unwanted sexual discussion and forced the applicant to engage in sex acts. The sexual assault, harassment, and gendered discrimination had severely affected this applicant.  It increased her anxiety, caused her to engage in self-harm, sent her off track in school and caused her to give up activities that she previously loved. Looking to the Joe Singer decision, the HRTO awarded $75,000 in general damages (the maximum that the applicant had requested).

Lessons for Employees

We all hope that the conduct seen in Joe Singer and X Tattoo would never occur, at work or elsewhere. However, we know that sexual harassment remains commonplace in Ontario. As the bar for the maximum damage awards has increased, we can expect that the average award level will also increase.

These decisions give employees more confidence that the sometimes long, difficult, and emotionally trying legal process to complain about sexual assault and harassment is worthwhile. These decisions, and higher general damage awards in the future, increase the likelihood that employees report incidents and pursue their legal rights.

If you have experienced sexual assault or sexual harassment at work, and would like to speak with a lawyer about your rights, please contact us at [email protected] or 1-888-640-1728 (toll-free) or 647-204-8107 (within the GTA).

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

#MeToo: Converting an online campaign into action

By , October 27, 2017 3:29 pm

Trigger Warning: This blog contains content about sexual harassment and abuse

Following the bombshell reports of allegations of sexual misconduct against Hollywood mogul Harvey Weinstein, thousands of women have taken to social media to participate in the #MeToo campaign to share stories of harassment and abuse they have faced in their own lives. Having worked in the restaurant industry, I’m no stranger to sexual harassment in the workplace. While it has been disheartening and dejecting to see the vast number of women joining the campaign, witnessing so many brave women banding together in an effort to foster positive change has been somewhat inspiring. In the hopes of helping those who find themselves affected by these types of heinous acts, the campaign has inspired me to write about the different legal avenues available to people who wish to take action against sexual harassment in the workplace.

The Human Rights Regime

Employment is a protected social area under the Ontario Human Rights Code, which means people should not be subjected to sexual harassment or discrimination by employers, by other employees or by members of the public when they are in the workplace. People that have been subjected to this harassment can file an application at the Human Rights Tribunal of Ontario. The forms are available online (click here) and there is no fee for filing an application. The time limit for filing is one year from the date of the last incident.

The Occupational Health and Safety Act (“the OHSA”)

Ontario employees are protected against harassment, whether sexual or otherwise, in the workplace. The OHSA requires employers to prepare policies to address workplace harassment (which is defined to include workplace sexual harassment) and violence and to create programs to implement those policies. If the employer becomes aware of an incident of workplace harassment or violence, the employer must investigate the incident. Similarly to a human rights application, the forms are available online (click here) and there is no fee for filing a complaint. When deciding whether to file a human rights application or a complaint to the Ministry of Labour (the ministry that oversees OHSA), it is important to note that there are no damages available under the OHSA for a violation. Rather, damages are only available for reprisal – i.e., an employee will only be awarded damages if they are punished as a result of their harassment complaint.

The Civil Route

Employees may be able to sue for such torts as assault, battery and intentional infliction of mental stress. Depending on the circumstances, a court may award aggravated and/or punitive damages. Survivors of sexual assault may be able to receive compensation through the Criminal Injuries Compensation Board.

Takeaway Points

If there’s anything we can take away from the magnitude of this online campaign it’s that sexual harassment and abuse is a pervasive problem that affects many women (and some men) of different walks of life. You are not alone. It is an unfortunate reality that, even on the heels of the #MeToo campaign – in essence, a peaceful and incredibly important protest that spans the globe, spurred on by the power of social media – we have a long way to go before we live in an era in which these issues disappear entirely. Regardless, for now, it’s important to understand that there are avenues available, however imperfect they may be at this moment in time. And hopefully, after reading this blog, you’re more aware of your legal options should you wish to take action.

“The material and information in this post are for general information only. They should not be relied on as legal advice or opinion. The author makes no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this post or its links. No person should act or refrain from acting in reliance on any information found in this post. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and the author or the MacLeod Law Firm.”

Sexual Harassment at Home: What Can You Do About an Inappropriate Landlord

By , September 26, 2017 11:00 am

Trigger Waring: this blog contains content about sexual harassment and violence

Rental housing and accommodation is a protected social area under the Human Rights Code in Ontario. That means that you should not be subjected to sexual harassment or discrimination by the owner, superintendent, or landlord of your rental housing.

However, in a recent decision the Human Rights Tribunal of Ontario heard about disturbing sexual harassment and gender discrimination that one woman endured.

The Case

In this decision, the applicant’s landlord, Jacques Andriano, engaged in three years of harassment, gender-based slurs, and reprisal.

Mr. Andriano became upset when the applicant disclosed to potential renters that there may be bugs in the apartment building. Following this, Mr. Andriano repeatedly harassed the applicant.

His behaviour included:

  • telling her all she owns “is what’s between your legs!” and thrusting his hand at her genitals;
  • calling her slurs such as “trash”, “dirty cunt whore”, and “fucking bitch”;
  • making threats that his paralegal would get her, that she would be on the street, and that she was lucky witnesses were around or something would happen to her;
  • stating that all “women are crazy”; and
  • vandalizing her bike while her proceeding occurred at the HRTO.

Without surprise, the applicant found this behaviour extremely demeaning and frightening.

The Tribunal found that Jacques Andriano had engaged in a course of vexatious comments and conduct based on sex and that he had abused his position as a landlord to make the applicant’s life a misery. It further found he had regularly made offensive gender-based comments and sexually demeaning gestures that denigrated her as a woman, and women in general.

Despite these strong findings, the Tribunal only awarded the applicant $20,000 in general damages.

Lessons

Ontario’s legislation cannot prevent all sexual harassment at home. However, where a person in a position of power in accommodation engages in gender-based discrimination and harassment there are consequences. Such behaviour is not acceptable in our communities and will be punished by the Tribunal.

However, this decision also demonstrates the ongoing need for the Tribunal to re-evaluate its remedies.  As I have said before, low damage awards for serious breaches of the Code, can do more harm than good. Ongoing repeated sexualized threats and harassment must be compensated with more than $20,000 if human rights in Ontario are to have any meaning.

If you have experienced sexual harassment or discrimination in rental housing, you should speak to a lawyer. You can reach us at [email protected] or 647-204-8107.

“The material and information in this post are for general information only. They should not be relied on as legal advice or opinion. The author makes no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this post or its links. No person should act or refrain from acting in reliance on any information found in this post. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and the author or the MacLeod Law Firm.”

 

Privacy Rights and the Disclosure of Intimate Details

By , February 3, 2017 9:00 am

January 2016 saw the Ontario Superior Court find that publishing a private intimate video of another could result in damages. In January 2017, the same court re-opened the decision allowing that Defendant a second opportunity to present his Defence.

The Case

In Jane Doe 464533 v. N.D., the Defendant posted an intimate video of his ex-girlfriend to a pornographic website and distributed it to his group of friends. He knew the girl was hesitant to provide the image and that she did so believing it would be kept private.  The act devastated the Plaintiff’s life resulting in depression and panic attacks and causing her to miss terms at university.

The court acknowledged that “technology has enabled predators and bullies to victimize others by releasing their nude photos or intimate videos without consent.” The judge further noted that it was now a criminal offence to publish an intimate image without consent.

The judge recognized the Defendant’s act was a breach of privacy, finding a tort in Ontario of the public disclosure of private facts.  This progressive decision awarded the Plaintiff a total of $141,708.03 inclusive of costs and interest.

The Change

The Defendant in the Jane Doe decision did not file a Statement of Defence. Because of this, he was not able to participate in the hearing where the judge made the decision above. He later requested the court to set aside the decision and allow him to file a Defence.  This request has now been appealed and allowed.  The case will start over and he will be permitted to participate throughout the process.

The court’s original findings on the public disclosure of intimate details will advance the law on privacy.  The decision was a positive step in the protection against sexualized and gender-based violence including the disclosure of intimate private images. The conclusion to re-open the case and allow the Defendant to file a Defence detracts from the importance of the law made in the original decision.

It is also likely to be a devastating set-back for the Plaintiff. I hope that she is able to continue with the case and that a new decision on the merits continues to recognize the right to privacy as integral in our society.

If you have experienced gendered violence or a breach of your privacy, you should speak to a human rights lawyer. You can reach us at [email protected] or 647-204-8107.

“The material and information in this post are for general information only. They should not be relied on as legal advice or opinion. The author makes no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this post or its links. No person should act or refrain from acting in reliance on any information found in this post. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and the author or the MacLeod Law Firm.”

 

Why Asking Your Employee to go Clubbing Could Cost You

By , January 26, 2017 10:33 am

I hope by now you know that sexual harassment at work is against the law. If not, please see here and here.

Despite this, sexual harassment is still pervasive in our workplaces. Where managers and employers often get themselves into trouble is the area of sexual solicitation.

The Human Rights Code informs us that employees have a right to be free from advances in the workplace from those able to offer or deny a benefit –  i.e. sexual propositions from a boss with the offer of a promotion are absolutely not permissible.  This is true where the person making the proposition knows or should know that it is not welcome.

Examples of this type of behaviour – and the real consequences of it – are evident in Anderson v. Law Help ltd.

The Case

Safari Anderson started working for Law Help Ltd. as a paralegal.  After some time, her boss starting asking her about her plans outside of work.  He started with inquiring about what she was doing on Saturday night.  He later asked her if she wanted to go clubbing with him.  He asked whether she would like to “hang out” on the weekend or “go away together” for the weekend. He told her he was thinking about her and that liked her.

While the language used by her boss, Giuseppe Alessandro, was not overtly sexualized, it was not allowed.  He told Ms. Anderson he would take care of her, implying that if she spent time with him, she would advance at work.

Mr. Giuseppe then punished Ms. Anderson for not going out with him.  He stopped paying her. He treated her in a hostile manner. He yelled at her and refused to let her attend a medical appointment. Ms. Anderson ultimately had to resign.

The Human Rights Tribunal of Ontario reviewed all of the evidence and found that Mr. Giuseppe’s advances breached the Code. It reiterated that persistent propositions can create a negative psychological and emotional work environment.

The Tribunal ordered Law Help Ltd. and Mr. Giuseppe to pay Ms. Anderson $22,000 for the injury to her dignity along with lost wages she incurred after quitting.

Lessons

As an employer or manager, asking out a colleague or employee can be expensive, and not because of the cost of the date.  Even where there are not sexual or gender-based comments, repeated advances of this nature are not allowed in Ontario’s workplaces.  They affect people’s dignity and sense of value in their jobs.

As an employee, if you are facing this conduct, you do not have to tolerate it.  Educate yourself on your rights under the Code. Speak to someone, perhaps another manager, human resources, or a human rights lawyer.  There are steps you can take to stop the treatment, and you may have a legal case against the person making the advances.

If you would like to speak to a lawyer at MacLeod Law Firm, you can reach us at [email protected] or 647-204-8107.

 

“The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

 

 

 

 

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