Temporary foreign workers win sexual harassment case; one awarded $150,000 for "injury to dignity" damages
In O.P.T. v. Presteve Foods Ltd., 2015 HRTO 675 - a decision issued on May 25, 2015 - the Ontario Human Rights Tribunal ("OHRT") awarded one of the complainants $150,000 for injury to her dignity, feelings and self-respect due to the sexual solicitations and harassment that she experienced in the workplace. The other complainant was awarded $50,000 for this head of damage.
The $150,000 award is, according to the union that represented the complainants, the new high-watermark for this type of damages in Ontario and, according to some commentators, three times higher than the previous high-water mark.
(Note: by way of comparison, in an April 2015 decision, a Filipino nanny who was sexually assaulted and otherwise exploited by her employer, was awarded $50,000 by the BC Human Rights Tribunal for loss of dignity, feelings and self-respect. See my post here:: $50,000 Sexually assaulted nanny awarded $50,000 by BC Tribunal for for loss of dignity, feelings and self-respect).
The case concerned two female workers from Mexico who had come to Canada under the Temporary Foreign Worker Program to work in Presteve Food's fish processing plant to Wheatley, Ontario. The owner of Presteve Foods was Jose Pratas, who was perpetrator of the sexual harassment.
(It was noted in the decision and the media that Mr. Pratas was also charged criminally in connection to the allegations and, according to media reports, had plead guilty to one charge).
The history of the case dated back to April 2009 when the Canadian Auto Workers (CAW-Canada) filed an application on behalf of 39 temporary foreign workers employed by the Presteve Foods. Three more complainants were subsequently added.
By the time the case went to hearing, however, the claims all of the other workers had been determined or resolved, leaving O.P.T. and M.P.T. as the only remaining applicants about whom a determination needed to be made as to whether their rights under the Ontario Human Rights Code.
In awarding the $150,000 to O.P.T. and against the company and Mr. Pratas on a joint and several basis, the OHRT stated as follows:
 With regard to the objective seriousness of the personal respondent's conduct towards O.P.T., it is my view that the seriousness of this conduct is unprecedented in terms of this Tribunal's previous decisions. While there are previous cases in which a respondent has made unwanted sexual solicitations and advances toward an applicant, has touched an applicant's thighs and breasts, has forcibly hugged and kissed an applicant, and even one case where a respondent forced an applicant to touch his penis, the personal respondent's conduct towards O.P.T. in the instant case went far beyond that. In this case, I have found that when alone in the house in Leamington with O.P.T., the personal respondent abused his position of power and authority over her to require her to perform fellatio on him on three occasions and to penetrate her with his penis on another three occasions. O.P.T. felt compelled to comply with the personal respondent's demands on the basis of his threats to send her back to Mexico, when she needed her job in Canada in order to help support her two children. In my view, the unprecedented nature of the personal respondent's conduct in this case justifies a very significant award of compensation for injury to dignity, feelings and self-respect.
 A very significant award of compensation for injury to dignity, feelings and self-respect also is justified, in my view, on the basis of O.P.T.'s particular vulnerability as a migrant worker, as part of the analysis of the impact of the respondents' conduct on the applicant referenced in Arunachalam, above. O.P.T. was 30 years old when she came to Canada. Her husband had been tragically killed, and she was left to support her two children. As a temporary foreign worker in Canada, O.P.T. was put in the position of being totally reliant upon her employer. As Dr. Preibisch testified, temporary foreign worker programs in Canada operate on the basis of closed work permits, which only entitle a migrant worker to employment with one designated employer. While theoretically possible to transfer employment to another employer while in Canada, there are significant barriers that make this practically impossible or at least very difficult. As a result, a migrant worker like O.P.T. tends to be reliant upon the employment relationship with the designated employer to a degree that is not experienced by Canadian workers. Migrant workers like O.P.T. live under the ever-present threat of having their designated employer decide to end the employment relationship, for which they require no reason and for which there is no appeal or review, and being "repatriated" to their home country and thereby losing the significant economic and financial advantages of their Canadian employment upon which they and their families depend. In O.P.T.'s case, the personal respondent was repeatedly explicit about this threat to send her back to Mexico if she did not comply with his demands and had demonstrated that he was capable of doing so by repatriating other Mexican women.
 O.P.T. was very emotional and often tearful in her evidence before me, and I needed to stop the hearing on a number of occasions while O.P.T. left the room to compose herself during the course of her testimony. O.P.T. testified about how much the personal respondent's actions had hurt her as a woman and as a person, and described how her chest still hurts when she talks about what he did to her. She also described the tremendous shame that she continues to experience as a result of the personal respondent's actions, and the impact this has had on her relationship with her current husband. I also have taken into account the fact that I have found the ultimate incident that led to the ending of O.P.T.'s employment with Presteve was an act of gender discrimination following a pattern of repeated and unwanted sexual solicitations and advances, such that O.P.T. properly can be regarded as having suffered the loss of her employment as a consequence of the repeated violations of her rights under the Code.
 In my view, the amount of compensation for injury to dignity, feelings and self-respect requested on behalf of this applicant is not unreasonable and is justified, given the unprecedented seriousness of the personal respondent's conduct in this case, the particular vulnerability of O.P.T. as a migrant worker, and O.P.T.'s personal circumstances and the impact of the conduct on her. Accordingly, in my view, an award of compensation for injury to dignity, feelings and self-respect in the amount of $150,000 as requested on behalf of O.P.T. is appropriate.
 To put this award in the context of this Tribunal's other decisions, in Smith v. Menzies Chrysler, above, the male applicant was awarded $50,000 in circumstances where the applicant was not subjected to sexual touching, let alone any sexual assault and was not nearly as vulnerable as O.P.T. In C.K. v. H.S., above, an award of $45,000 was made where there was one serious incident of forced sexual contact, whereas in the instant case, O.P.T. was compelled to perform fellatio on the personal respondent three times and be sexually penetrated by him three additional times, for a total of six occasions. In S.H. v. M[...] Painting, above, an award of $40,000 was made where there was one serious incident of forced sexual contact, which did not include forced fellatio or penetration. In my view, the award of $150,000 sought on behalf of O.P.T. is proportionate to these other Tribunal awards, and reflects the far greater seriousness of what the personal respondent did to O.P.T. than the circumstances in these other Tribunal cases and O.P.T.'s greater vulnerability as a female migrant worker and the impact on her.
Following the release of the decision, Unifor (the union that resulted from the merger of the CAW - CANDA and Communications, Energy and Paperworkers Union of Canada), issued the following news release on May 27, 2015:
Landmark human rights ruling highlights systemic abuse of temporary foreign workers
TORONTO, May 27, 2015 /CNW/ - The Human Rights Tribunal of Ontario has found Presteve Foods Limited discriminated against two women from Mexico working under the Temporary Foreign Worker program. One of the two remaining complainants out of 39 received the highest damages award in the Tribunal's history. The Tribunal found that the women were exposed to sexual solicitation, sexual harassment, discrimination in employment, and a sexually poisoned work environment.
One complainant in the case, known by her initials O.P.T., wishes to make the following statement:
"I want to tell all women that are in a similar situation, that they should not be silent and that there is justice and they should not just accept mistreatment or humiliation. We must not stay silent. [As a migrant] one feels that she/he has to stay there [in the workplace] and there is nowhere to go or no one to talk to. Under the temporary foreign worker program, the boss has all the power - over your money, house, status, everything. They have you tied to their will. It has been 8 years to obtain justice but 8 years and justice is finally here today."
The union representing O.P.T. and intervener groups say that the ruling underscores the failings of both the provincial and federal government to protect temporary foreign workers. They say that the "closed" work permit imperils workers, especially women.
"While an absolute vindication for these women, the real take-away from the case is that the Temporary Foreign Worker Program creates the conditions that allowed this exploitation to go unchecked," said Niki Lundquist, Unifor, Counsel to the Applicants. "Handcuffing workers to employers creates vulnerability and without meaningful oversight, abuse is inevitable."
"Workers in these programs are held hostage by a single employer. There is no way to leave. While we are satisfied the Tribunal ordered financial compensation to two of the women who were assaulted and threatened with deportation, the case cries out for a systemic overhaul of the programs and protections for migrant workers," said Grace Vaccarelli, Human Rights Legal Support Centre.
"This decision is an indictment not only against Jose Pratas and Presteve Foods but an indictment against Canada's temporary foreign worker program. We hope this decision breaks the silence of tens of thousands who toil under exploitative working and living conditions," said Justicia for Migrant Workers organizer Chris Ramsaroop.
In his ruling, adjudicator Mark Hart repeatedly commented on the vulnerability of O.P.T. as a migrant worker: "...migrant workers, like OPT live under the ever-present threat of having their designated employer decide to end the employment relations for which they require no reason and for which there is no appeal or review" (paragraph 216).
Unifor, HRLSC, and Justicia are calling for changes to the temporary foreign worker program that include: providing permanent immigration status for migrant workers, ending closed work permits so that migrant workers are no longer indentured to a single employer, ending recruitment fees and holding both employers and recruiters liable for violations against migrant workers
As reported in the media, Erik Grzela, in-house counsel at Presteve Foods, issued the following statement after the decision was released:
"The events referred to in the HRTO decision occurred before the current ownership and are in no way connected to the current ownership, which has been committed to respecting human rights and dignity in and out of the workplace."