Law Times

Page 8 September 14, 2015 • Law timeS www.lawtimesnews.com Is court or HRTO the better venue? Cost awards among advantages of going before a judge BY MARG. BRUINEMAN For Law Times hen Michelle Silvera first a p p r o a c h e d lawyer Kevin Marshall, she was coming to him with a wrong- ful dismissal complaint. But in June, the court award- ed Silvera more than $300,000 for a series of sexual assaults and harassment perpetrated by her supervisor as well as wrongful dismissal and Human Rights Code violations. It also awarded her daughter $15,000 in dam- ages under the Family Law Act with another $102,498 for Silve- ra for costs and disbursements. For Marshall, whose practice consists of a unique mix of em- ployment and personal injury law, Silvera's situation allowed him the advantage of combin- ing that experience in one case. And because the human rights complaint was only one aspect of the overall case, he was able to bring it all before a single court. "When my client first came to me, it was only about wrong- ful dismissal," says Marshall. "Her whole modus operandi is to not talk about it." Over time, he realized there was much more, something that resulted in amendments to the original statement of claim. Whenever possible, Marshall ad- vises his clients to choose court over the Human Rights Tribunal of Ontario, where he has seen awards usually restricted to four or five figures. In this case, the employer failed to show up for trial and the court accepted Mar- shall's submissions as facts. Silvera, a single mother who, as a child, had suffered sexual abuse by her stepfather repeatedly between the ages of five and 16, worked as the man- ager of a clothing store and then as a manager of another store until that company shut down in 2008. She then worked as a receptionist and assistant ad- ministrator at Olympia Jewel- lery Corp., a Toronto gold and diamond jewelry manufacturer and seller, for $28,000 per year. Raphael Bazik owned the facili- ty and his brother, Morris, ran it. After Silvera had been there for about a year, Morris began to approach her sexually. It started when he grabbed her breasts after putting a pendant around her neck. He apologized but on another occasion he grabbed her buttocks when no one else was around. On top of that, he paid inappropriate attention to her and made demeaning and racist comments. It all came to a head when Silvera took time off work due to complications from dental sur- gery. She received a termination letter for "prolonged absence from work" and a failure to work out the issue. The experience left her with depression and a feeling that made it difficult for her to work in close proximity to men. It also put strain on her relationship with her daughter. "Morris not only did not comply with his apology and promise to stop, he escalated his assaults at work. In the third assault, he trapped Michelle be- hind her desk, caused her physi- cal harm by tightening a chain around her neck, and engaged in the conduct even though there were other employees working at that time at Olympia. . . . Morris' sexual and racial ha- rassment through inappropriate jokes and emails denigrated Mi- chelle based on her gender and the colour of her skin," wrote Justice Benjamin Glustein of the Ontario Superior Court. Glustein also noted the busi- ness lacked any sort of sexual harassment policies or anything else in place to address that type of conduct. The decision to bring all as- pects of the case together before one court instead of going to the Human Rights Tribunal for the human rights complaint paid off for the complainant, says James Fu, an associate at Borden Ladner Gervais LLP. Still, the f loodgates to the courts haven't exactly burst open since plain- tiffs have had that extra option. Among the amendments introduced to the Ontario Hu- man Rights Code in 2008 was the ability for the courts to award human rights damages where the civil proceeding in- volves more than an alleged hu- man rights infringement. It took almost five years before an On- tario court finally heard a hu- man rights case: Wilson v. Solis Mexican Foods Inc. A few cases have since followed. "There are probably a hand- ful that have gone through the courts system," says Fu. Because there's clearly a trend, albeit a slow one so far, of bringing human rights com- plaints to the courts, Fu says there's an increased emphasis for employers to have mitigation strategies in place. Marshall says the ability to seek costs also played a role in his decision to bring Silvera's case to the courts over the tribu- nal. In Silvera's case, costs and disbursements amounted to an award of more than $100,000. Employment lawyer Parisa Nikfarjam of Rubin Thomlinson LLP says the case demonstrates a different approach to harass- ment and other complaints by drilling into the problem and taking into account the impact of the wrongful behaviour. "This case opens the door to personal injury law and damage principles in harassment cases," she says. "It's now signalling to employment lawyers . . . to really canvass what's the impact of the harassment." That the defendant failed to show up at trial perhaps gave the judge more room when it came to damages. According to Nikfarjam, it will be interesting to see the impact of the decision and the damages awarded in fu- ture cases. LT Kevin Marshall advises his clients to choose court over the Human Rights Tribunal of Ontario. FOCUS ON Human Rights Law W Human Rights Tribunal raises the bar with $150,000 award BY MARG. BRUINEMAN For Law Times aced with the task of helping migrant workers seek relief for having endured the unrelenting sex- ual demands of their employer and his poisoned workplace, union lawyer Niki Lundquist found the Human Rights Tribunal of Ontario to be the right place to hear the case. Earlier this year, the tribunal ultimately presented a Mexican woman with its highest award ever. "I just thought it was the best route available that would actually give them justice, which they hadn't got anywhere else yet. That had some weight to it," says Lundquist, associ- ate counsel with Unifor. "It was the best opportunity to provide them with meaningful relief." The sheer size of the award in O.P.T. v. Presteve Foods has attracted a great deal of attention within the profession as has the brutality of the facts of the case. "This is a particularly egregious case. It's awful," says Gabriel Granatstein, an associate at Norton Rose Fulbright Canada LLP. Tribunal adjudicator Mark Hart awarded one com- plainant $150,000 and her sister $50,000, plus interest, for a total of $220,000. Awards have typically ranged in the area of $500 to $15,000, according to Granatstein. With that bar now raised, he expects it will encourage others to seek higher damages. The case stems from an application by what was then the Canadian Auto Workers on behalf of 41 temporary foreign workers employed by Presteve Foods, a fish pro- cessing plant in Wheatley, Ont. The complaints largely involved wage differentials with most of them settling. But nine cases that involved three women from Mexico and six from Thailand dealt with complaints of sexual ha- rassment and discrimination on the basis of gender. With seven of those cases then settled, the complaints of two sisters from Mexico remained before the tribunal. The court dealt with related criminal charges in 2011 when Presteve's owner and principal, Jose Pratas, pleaded guilty to assault involving seven of those ap- plicants, including two identified as O.P.T. and M.P.T., on March 1, 2011. The court granted him a conditional discharge with three months' probation. The sisters, O.P.T. and M.P.T., came from Mexico in August 2007 with eight other Mexican women to work at Presteve Foods. It assigned them rooms in a house in Leamington, Ont., where Pratas set a curfew of 10 p.m. after which the door would be locked, the lights turned off, and music, TV, and phone calls were pro- hibited. Pratas also had them sign a form in English, a language many of them didn't know, allowing him to take their passports, work permits, and health cards. F See Ruling, page 10

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