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Escalating damage awards for employees at the HRTO

The Ontario Human Rights Code (the "Code") prohibits discrimination in five areas, including employment. An employee who successfully establishes a violation of the Code at the Human Rights Tribunal of Ontario ("HRTO") may be entitled to reinstatement and back pay, an award of general damages for "injury to dignity, feelings and self-esteem," or both.

In the past, there was a limit to the amount of damages that could be recovered at the HRTO and awards tended to be low. However, recent trends demonstrate that employees are receiving higher awards of damages than ever before. For instance, in the 2013 decision of Fair v. Hamilton-Wentworth District School Board, the Tribunal awarded an employee with reinstatement, $420,000 in back pay and $30,000 in general damages after finding that the respondent had discriminated her on the basis of disability by failing to accommodate her and then terminating her employment.

Then, in the 2015 decision of O.P.T. and M.P.T. v. Presteve Foods Ltd. et al., the Tribunal awarded two employees with general damages in the amount of $150,000.00 and $50,000.00, respectively. The Tribunal held that the applicants, who were temporary foreign workers, were subjected to sexual harassment in the workplace and a sexually poisoned work environment. It was held that the "unprecedented seriousness of the respondent's conduct" justified such high awards.

And just this year, the Tribunal granted the highest award of general damages in history in what was described as a "he said, she said case." In the decision of A.B. v. Joe Singer Shoes Limited, the Tribunal held that the applicant was subject to sexual harassment, solicitation and a poisoned work environment by the respondent, who was both her employer and her landlord. The applicant was granted $200,000 in general damages on account of the seriousness and duration of the conduct and her vulnerability as an immigrant who simply could not escape the abuse.

Evidently, there is an increasing willingness on the part of the HRTO to grant significant monetary awards to discriminated employees. However, it seems that an employer's conduct must be of a particularly egregious nature to warrant such a significant award.

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