In LN v Ray Daniel Salon & Spa and Reza Khosravi [LN], the Human Rights Tribunal of Ontario (“HRTO”) awarded the employee $180,000 in general damages—the second highest damages award in Ontario to date—for sexual harassment, sexual solicitations/advances, sex-based and citizenship-based discrimination, and reprisal. The HRTO considered the particularly precarious position of the employee in calculating the appropriate compensation award to make her whole.

This decision underscores how sexual assault cases are attracting more serious attention, as evidenced by recent charges brought against five former Canadian junior hockey players for similar conduct.

Facts

The employee, a refugee from Iran, began working as an esthetician at the employer’s salon shortly after arriving in Canada in 2019. During the employee’s short two-month tenure, the owner subjected her to several instances of egregious sexual assault and harassment, as well as exploited her by paying her less than half of minimum wage and withholding one month of her wages. The owner also forcefully cut and bleached the employee’s hair without her consent, burning her neck in the process.

To further intimidate the vulnerable employee, the owner threatened to lie about the employee stealing his phone to have her deported and threatened to kill the employee if she reported him to the police.

When the employee filed a human rights application with the HRTO regarding the owner’s misconduct, the owner filed a claim in Ontario’s Small Claims Court in response. The owner also contacted the employee’s treating psychologist and therapist, who lived in Iran and who was to appear as the employee’s witness, to intimidate the witness prior to the hearing.

Decision

The HRTO found the owner engaged in sexual harassment, egregious sexual assault that amounted to sexual solicitations/advances, and sex-based discrimination. In paying the employee only $5 per hour and stating that this was a “customary” starting wage, the owner also subjected the employee to citizenship-based discrimination. Finally, by threatening the employee, suing the employee in response to her human rights application, and intimidating the employee’s witness, the owner also reprised against the employee.

In its analysis, the HRTO noted that although one instance of egregious sexual assault occurred in the owner’s car rather than the physician workplace, the owner’s car was still a “workplace”, as the sexual assault occurred when the employee believed she and the owner were on a work-related errand.

The HRTO also commented on the employee’s traumatic background before she was forced to flee to Canada as a refugee. In this context, the owner’s misconduct and threats of deportation were even more harmful and exploitative.

Although there was no evidence to demonstrate how much the owner owed the employee in unpaid wages, the HRTO addressed the remedy as a global damage award. Given the intersectionality of the owner’s human rights violations, the HRTO awarded the applicant $180,000 in general damages, reflecting the severe impact of the owner’s misconduct on the vulnerable employee.

Sexual Assault Charges Against Hockey Canada Players

The HRTO’s significant damage award in LN reflects the heightened awareness and scrutiny of sexual assault and harassment in the workplace. The recent charges of sexual assault against members of Canada’s 2018 junior hockey team are a reminder that while sexual assault can occur outside of the workplace, employers still have obligations and may still discipline employees for off-duty conduct. We list relevant employer considerations below.

Takeaways for Employers

Employers should ensure that they have robust complaint mechanisms in place to address complaints of sexual harassment or sexual assault promptly and effectively. These mechanisms should outline clear procedures for investigation and resolution, including who will address the complaint and what steps may occur within the process. Complaints procedures should include a second person who can receive complaints/reports in case the primary person is the subject of the complaint/report. Employers should also determine whether safety measures are needed to ensure that the complainant is protected while the matter is being investigated.

Although criminal investigations may be conducted concurrently with workplace investigations, police involvement does not relieve an employer of its duty to investigate sexual assault or harassment allegations under the Occupational Health and Safety Act. While employers must not interfere with a police investigation, they must still conduct an investigation that is appropriate in the circumstances when they receive a complaint involving sexual assault or harassment, or they become aware of same.

Unlike the standard of “beyond a reasonable doubt” used in criminal law, workplace investigators use the “balance of probabilities” standard to come to findings and may come to findings more quickly. This means that even if a criminal charge does not result in a conviction against an employee, the employer may still find the employee engaged in misconduct requiring corrective action. In some cases, even if the employee engaged in misconduct outside of the workplace, they may still be disciplined for off-duty conduct.

To help prevent instances of misconduct, employers should clearly outline expectations in their anti-discrimination, anti-harassment, and anti-violence policies, and should delineate the consequences of breaching these policies.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.