The Human Rights Tribunal of Ontario (the "HRTO" or "Tribunal") recently awarded an employee significantly more in general damages for discrimination than the range established by previous decisions, with the Tribunal justifying this higher damage award based on inflation. In McConnel v. Hibbert, the HRTO awarded $75,000 in general damages to a male employee for discrimination on the basis of sex, despite that it had awarded damages in the range of $42,500 to $55,000 in similar cases in the past. As a result, employers may see a jump towards higher damage awards for discrimination going forward.
Background
Mr. McConnel was employed as a Petroleum Mechanic by Claybar Contracting Inc. On June 3, 2020, he was working at a construction site which was being managed by another company, BGIS.
While working at the construction site, Mr. McConnel was approached by Mr. Hibbert, an executive of BGIS whom he did not know. Mr. McConnel testified that Mr. Hibbert put one hand on his lower back and another hand on his lower abdomen while introducing himself, and he then began to rub against Mr. McConnel in a "sexual manner". Subsequently, Mr. Hibbert slowly slid his hands upwards while moving behind Mr. McConnel, and he proceeded to choke Mr. McConnel for a few seconds before walking away.
Others witnessed this interaction and saw that Mr. McConnel was visibly upset afterwards. The incident was also partially caught on video, and Mr. McConnel reported it the same day before taking a couple of days off of work due to stress. Mr. McConnel also reported the assault to the police.
Following the incident, Mr. McConnel filed a human rights application with the HRTO alleging discrimination in employment based on sex, including sexual harassment and sexual solicitation and advances. This application was originally filed against both BGIS and Mr. Hibbert, but BGIS and Mr. McConnel reached a settlement before the case proceeded to a hearing. As a result, only Mr. McConnel's discrimination claims against Mr. Hibbert proceeded to a hearing.
Although Mr. Hibbert initially filed a response defending against the allegations, he subsequently failed to file any hearing documents or to attend the hearing. As a result, the HRTO deemed Mr. Hibbert to have admitted to the factual allegations against him, and it proceeded with a hearing to determine whether Mr. Hibbert's actions amounted to discrimination in employment on the basis of sex.
The HRTO's Decision
The HRTO ultimately held that Mr. Hibbert did discriminate against Mr. McConnel on the basis of sex, and it consequently awarded Mr. McConnel $75,000 in general damages for injury to his dignity, feelings and self-respect.
In reaching this conclusion, the HRTO first defined workplace sexual harassment as "unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of harassment". Subsequently, it held that the legal test for establishing sexual harassment by an individual respondent under the Ontario Human Rights Code requires the applicant to prove:
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That the respondent was the applicant's employer, agent, or another employee;
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The respondent harassed the applicant by engaging in a "course of vexatious comment or conduct towards the applicant that was known or ought reasonably to have been known to be unwelcome";
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The respondent harassed the applicant in a workplace; and
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The respondent harassed the applicant because of the applicant's sex.
In this case, the Tribunal found that this test was met because: (i) Mr. McConnel was an employee working in a workplace, and Mr. Hibbert was another employee working in the same workplace; (ii) there was "no conceivable way" that Mr. Hibbert could have reasonably believed that touching Mr. McConnel in a sexual manner would be welcomed given that they were in a workplace and did not know each other; (iii) the unwanted touching constituted sexual assault and was therefore sufficiently serious to amount to a vexatious "course of conduct", despite that it was a single incident; and (iv) the very nature of sexual harassment is sufficient to establish that Mr. McConnel's sex was a factor in Mr. Hibbert treating him adversely.
In making these findings, the HRTO ruled that an allegation of discrimination "with respect to employment" is not limited to claims by an employee against their own employer. Rather, the prohibition against discrimination in employment prohibits discrimination against employees by individuals where there is a "sufficient nexus to the employment context". As a result, the Tribunal held that Mr. Hibbert discriminated against Mr. McConnel with respect to his employment, despite that they were employed by different employers.
Finally, in determining the amount of damages to award Mr. McConnel, the Tribunal reviewed several previous awards involving workplace sexual assault, which ranged in severity. The damages awarded in these cases ranged from $42,000 up to $200,000. The Tribunal found that Mr. McConnel's case fell at the "lower end" of the spectrum in terms of severity. Out of the previous decisions reviewed, the three lowest awards fell between $42,500 and $45,000.
Nonetheless, the HRTO awarded Mr. McConnel $75,000 because it found that "inflation is a factor to consider in comparing past awards to present", and it consequently took inflation into account.
The Bottom Line
This decision suggests that employers may be subject to elevated damage awards for discrimination going forward, making it as important as ever to ensure that they proactively minimize exposures with appropriate workplace policies, training, and corrective action.
Employers should also ensure that their policies and training make it clear that discriminatory conduct towards anyone in the workplace is prohibited, irrespective of whether the worker is a company employee, a contractor, or employed by another employer. This is particularly important for employers in industries like construction where it is commonplace for workers to be working alongside employees of other companies.
If you require any assistance with minimizing your business' human rights exposures via workplace policies and training, please do not hesitate to contact us for expert advice and representation.
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