KPA Lawyers – May 22, 2015

O.P.T. v. Presteve Foods Ltd., 2015 HRTO 675 (CanLII)

[Re-posted from CanLii Connects.]

Jose Pratas (pictured), the former owner of Presteve Foods, pleaded guilty to assault in 2009 and was given a conditional sentence and three years probation.

The Ontario Human Rights Tribunal ruled that the owner of a fish processing plant in southern Ontario subjected two temporary foreign workers from Mexico to unwanted sexual solicitations and advances; sexual harassment, including assault; and a sexually poisoned work environment, in contravention of the provincial Human Rights Code. Emphasizing the vulnerability of temporary foreign workers in Canada and the particularly egregious nature of the owner’s conduct towards the two women, the Tribunal, in an unprecedented decision, awarded them damages of $150,000 and $50,000 respectively, in compensation for injury to dignity, feelings, and self-respect.

The Facts:

Two temporary foreign workers filed a human rights complaint of discrimination in employment, alleging that their employer had subjected them to unwanted sexual solicitations and advances, sexual assaults and touching, a sexually poisoned work environment, and reprisal.

In August 2007, O.P.T. and her younger sister, M.P.T., came to Canada from Mexico to work under the federal government’s Temporary Foreign Worker Program at Presteve Foods Ltd.’s fish processing plant in Wheatley, Ontario. They were housed with other female migrant workers from Mexico in a residence located in Leamington, Ontario.

O.P.T. claimed that, soon after she started working at Presteve, owner Jose Pratas began singling her out from the other workers and invited her out to dinner with him on many occasions, threatening that he would send her back to Mexico if she refused to join him. O.P.T., whose husband had been killed in Mexico and who was the sole provider for her two children, claimed that she felt obligated to go to dinner with Pratas in an order to keep her job and avoid deportation. O.P.T. alleged that, on several occasions, while in the car alone with Pratas, he touched her legs, breasts, and vagina over the top of her clothes, despite her repeatedly telling him to stop, forced her to take off her pants on one occasion, and to touch his penis on another occasion, threatening to send her back to Mexico if she failed to comply with his demands. O.P.T. further alleged that, on several occasions, Pratas called her to his private office at Presteve and touched her breasts. Finally, O.P.T. alleged that Pratas forced her to perform fellatio and penetrated her with his penis on several occasions at the Leamington house.

Similarly, M.P.T. reported that, on her first day of work at Presteve, Pratas came up behind her and slapped her left buttock and that, on later occasions, he touched her breasts in his private office. Additionally, having been instructed that Pratas was the only person who could take any of the workers to medical appointments, M.P.T. alleged that, on two separate occasions in which she asked him to drive her to doctor’s appointments, Pratas repeatedly propositioned her and touched her legs, telling her that all of her medical ailments would disappear if she had sex with him. M.P.T. further claimed that, in March 2008, when she tried to leave the Leamington house to go for coffee with a friend while Pratas was there, he shouted and screamed at her, stating that she was not allowed to leave the house at that hour and threatening that, if she did leave, she would be sent back to Mexico. When M.P.T. proceeded to leave, she claimed that Pratas told her not to return to the house. A few days later, on April 2, 2008, M.P.T. was told that she was being sent back to Mexico. She claimed that, when she went to the Mexican consul in Leamington that same day, and disclosed that Pratas had touched her sexually, she was advised that there was nothing that could be done. She returned to Mexico.

O.P.T. claimed that, on May 4, 2008, she was watching a televised soccer match at a local bar with a friend when Pratas called her cell phone, demanding to know where she was. He then arrived at the bar to take her back to the house in Leamington. She alleged that, in the car, Pratas attempted to take her cell phone from her, eventually pulling the car over to the side of the road, coming around to the passenger side door, and yanking her out of the car by her wrists. O.P.T.’s friend, who was driving by at the time, intervened. They reported the incident to the police and assault charges were laid against Pratas, who was subsequently found guilty of assault but given an absolute discharge. O.P.T. did not return to work at Presteve after this incident.

On August 27, 2008, after working for approximately two months as a dancer at a strip club in Windsor, contrary to her work permit, O.P.T. returned to Mexico to care for her children. Prior to her departure, Pratas provided her with a letter offering her a permanent position as a fish filleter to start at any time she desired. After she returned to Mexico, O.P.T. claimed that she received three telephone calls from Pratas, telling her that he loved her, and informing her that he would be in Mexico on business and wanted to come to O.P.T.’s house and see her children.

In November 2008, O.P.T. returned to Canada with her children, on a temporary residency permit. She was contacted by police to give a statement in December 2008, which was the first time she disclosed that she had been sexually assaulted by Pratas. Criminal charges were laid against Pratas in relation to this sexual assault as well as in relation to several other female temporary foreign workers who had worked at Presteve. A preliminary inquiry was conducted between September 2009 and April 2010. In February 2009, M.P.T. was contacted by police regarding her experiences with Pratas, and she returned to Canada on February 18, 2009.

On March 1, 2011, Pratas pleaded guilty to simple assault and received a conditional discharge and three months’ probation. As part of his plea, Pratas admitted to touching O.P.T.’s legs or her clothing while in his car. He also admitted to touching M.P.T.’s chest on one occasion in his office and to touching her above the knee in his car on two trips to the doctor’s office.

In the meantime, on April 30, 2009, CAW-Canada filed a human rights complaint on behalf of 39 female temporary foreign workers employed by Presteve, alleging violations of ss.5(1), and 7 of the Ontario Human Rights Code. The hearing was deferred pending resolution of the criminal proceedings. On April 12, 2012, the union’s application was amended to add O.P.T. and M.P.T. as applicants.

Section 5(1) of the Code provides in part that “[e]very person has a right to equal treatment with respect to employment without discrimination because of sex….” Section 7(2) states in part that “[e]very person who is an employee has a right to freedom from harassment in the workplace because of sex … by his or her employer….” Section 7(3) provides:

Every person has a right to be free from,

1. a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or
2. a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.

In a preliminary decision dated January 4, 2013, the Ontario Human Rights Tribunal determined that only nine applicants properly remained in the proceeding: the others either had their cases transferred to a different file created to address “wage” discrimination claims, which were to be resolved in accordance with a tentative settlement agreement; could no longer be contacted; or had their applications dismissed for delay. Seven of the remaining applications were resolved, leaving O.P.T. and M.P.T. as the applicants.

The Arguments:

Maintaining that the impact of discrimination in this case was extreme and constituted discrimination with respect to employment on the basis of sex, sexual harassment, sexual solicitations or advances, and reprisal, M.P.T. and O.P.T. sought compensation for injury to dignity, feelings, and self-respect in the amount of $150,000 for O.P.T. and $100,000 for M.P.T.

Presteve and Pratas argued that the application should be dismissed for delay, pursuant to s.34 of the Ontario Human Rights Code, which provides that an application must be filed within “one year after the last incident in the series.” In the alternative, Presteve and Pratas contended that both O.P.T. and M.P.T. fabricated their allegations against Pratas in an attempt to advance their immigration status and remain in Canada, noting that both women had relied on their allegations in support of their applications for permanent residency status on humanitarian and compassionate grounds. Presteve and Pratas also maintained that the allegations were not credible in light of the fact that O.P.T. continued to work at Presteve and go out with Pratas for many months after the incidents complained of.

The Decision:

Ontario Human Rights Tribunal Vice-Chair Mark Hart allowed the complaint, ruling that Pratas had subjected O.P.T. and M.P.T. to sexual harassment and unwanted sexual solicitations, a poisoned work environment, and discrimination in respect of employment on the basis of sex. He awarded damages of $150,000 to O.P.T. and $50,000 to M.P.T. for injury to dignity, feelings, and self respect.

Hart declined to dismiss the complaints on the basis of delay. In addition to determining that O.P.T.’s allegations were not out of time due to the fact that the phone calls in Mexico were part of a “series” of incidents and had occurred within the one-year time frame, he also held that he would allow M.P.T.’s claims, which were out of time, given that the delay was incurred in good faith and, therefore, allowable under s.34(2) of the Code. He reasoned:

[M.P.T.’s] evidence is that she was not aware and no one informed her of her rights under the Code or any of her employment rights in Canada. Before leaving Canada, M.P.T testified that she went to see the Mexican consul and informed him of the sexual touching she had experienced from [Pratas], and was told that there was nothing she could do and her best option was to return to Mexico. … In these circumstances, … M.P.T cannot be faulted for taking no further steps to inquire about her rights during the time she was in Mexico or even after returning to Canada, given that she reasonably relied upon erroneous information from a person in authority from whom she sought information about her rights.

Turning to the merits of the complaints, Hart found the evidence of both O.P.T. and M.P.T. to be credible as to the material points of their allegations, drawing an adverse inference against Pratas due to his failure to testify at the hearing and rejecting the contention that the women had fabricated the allegations in support of their immigration claims as unsupported by the evidence. He also rejected the contention that O.P.T.’s credibility was undermined by her actions in continuing to work at Presteve and socialize with Pratas, stating that this submission “does not sufficiently appreciate the power that [Pratas] wielded over O.P.T. as a migrant worker.” In his words:

The consistent evidence from O.P.T., M.P.T. and [another witness] is that [Pratas] would threaten to send them back to Mexico if they did not do what they were told. O.P.T.’s evidence is that this threat was made by [Pratas] specifically in relation to his requests for her to go out for dinner with him and his demands that she perform acts of a sexual nature. So O.P.T.’s choice was to do what she was told, or risk being sent back to Mexico and lose her ability to work and earn money in Canada that she could use to send back to help support her children. In these circumstances, I have no trouble believing O.P.T. that she continued to go out with [Pratas], despite the incidents of unwanted sexual touching.

Having found that the incidents alleged by both M.P.T. and O.P.T. had occurred, Hart held that Pratas, as owner and principal of Presteve in a position to confer, grant, or deny a benefit, subjected them to “a persistent and ongoing pattern of sexual solicitation and advances” during their period of employment, and threatened retaliation if refused, contrary to sections 7(2) and 7(3)(a) of the Code, and that these sexual solicitations, advances, and harassment created a sexually poisoned work environment contrary to s.5(1) of the Code. Noting that the advances that took place in Pratas’ office were clearly in the workplace, Hart held that the incidents that took place in the car and at dinner also had a “sufficient connection” to the women’s employment to be considered sexual harassment in the workplace, citing C.U. v. Blencowe, 2013 HRTO 1667 (CanLII) (reported in Lancaster’s Women/Pay Equity Employment Law, July 3, 2014, eAlert No. 86). In his view: “It is clear from the evidence … that [Pratas’] conduct, including the sexual harassment that occurred at dinner and in his car, detrimentally affected O.P.T.’s work environment and occurred under threat of adverse job-related consequences.” He came to a similar conclusion with respect to M.P.T., observing that “Pratas’s sexual harassment of M.P.T. in his car detrimentally affected M.P.T.’s work environment and the requirement that [Pratas] take M.P.T. and other migrant workers to the doctor was imposed under threat of adverse job-related consequences.”

Hart also held that Pratas’ actions on May 4, 2008 were discriminatory, considering them to be “manifestations of an attempt by him as a man to exercise power, control, dominance and authority over O.P.T. as a woman.” Similarly, he determined that sending M.P.T. back to Mexico was discriminatory, noting that “these events evoke the characteristics of a man in a position of authority attempting to exercise power and control over a woman, and becoming enraged and retaliating against her when she defies him.” Finally, he considered Pratas’ phone calls to O.P.T. in Mexico to constitute a solicitation contrary to s.7(3) of theCode, opining that “in the overall context of [Pratas’s] pattern of sexual solicitations and advances towards O.P.T. and his misguided and unwanted attempts to have a sexual relationship with her, the expression of … interest in coming to O.P.T.’s house and seeing her children is properly regarded as a sexual solicitation or advance.” He also found that Pratas continued to be in a position to confer or deny a benefit at this time given the outstanding offer of employment in the letter.

Turning to liability and damages, Hart held that Pratas was the directing mind of Presteve and that Presteve was therefore “jointly and severally liable with [Pratas] for all violations of the Code,” noting that, although liability of the employer is not automatic for s.7 violations, it will be held liable where the perpetrator is the directing mind of the corporation. Based on a review of past Tribunal decisions, Hart held that an award of $150,000 was appropriate to compensate O.P.T. for injury to dignity, feelings, and self-respect. Stating that “the unprecedented nature of [Pratas’s] conduct in this case justifies a very significant award,” Hart also held that a high award was warranted “on the “basis of O.P.T.’s particular vulnerability as a migrant worker.” In his words:

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…. 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, [Pratas] 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.

In determining the quantum of M.P.T.’s compensation, Hart held that $50,000 was an appropriate award to compensate for injury to dignity, feelings, and self-respect given the number of incidents she endured, coupled with her “particular vulnerability as a migrant worker.”

In the result, Vice-Chair Hart allowed the complaints and awarded damages to O.P.T. and M.P.T. of $150,000 and $50,000 respectively for injury to dignity, feelings, and self-respect, plus pre- and post-judgment interest. He also ordered Presteve to provide human rights information and training to its workers under the temporary foreign workers program, in their native language, for three years following the date of the decision.

Comment:

In awarding unprecedented damages, the Ontario Human Rights Tribunal emphasized the egregious nature of the owner’s conduct, in addition to the women’s vulnerability as temporary foreign workers in Canada. Noting that damages for injury to dignity are compensatory rather than punitive, the Vice-Chair cited the decision in ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC) (CanLII), reviewed in Lancaster’s Human Rights and Workplace Privacy, November 7, 2008, eAlert No. 110, in which the Ontario Divisional Court confirmed that an award to compensate for the “experience of victimization” is based upon a number of considerations, including: the impact of the infringement; the duration, frequency and intensity of the offensive conduct; the vulnerability of the complainant; the objections to the offensive conduct; and knowledge that the conduct was unwelcome. In Arunachalam v. Best Buy Canada, 2010 HRTO 1880 (CanLII), also relied on by the Vice-chair in the case at hand, the Tribunal set out two primary criteria for evaluating such damages: “the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination,” stating:

The first criterion recognizes that injury to dignity, feelings, and self respect is generally more serious depending, objectively, upon what occurred. … The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.

The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious.

With regard to the second criterion, the Tribunal in the instant case was especially mindful of the particular vulnerability of temporary foreign workers. Although the Vice-Chair declined to comment on certain aspects of Temporary Foreign Worker programs in Canada, he did repeat the concerns he set out in his earlier decision in Peart v. Ontario (Community Safety and Correctional Services), 2014 HRTO 611 (CanLII), reported in Lancaster’s Human Rights and Workplace Privacy, May 14, 2015, eAlert No. 259. While he dismissed the complaint in that case, Hart’s decision included extensive background information and evidentiary analysis regarding the particular vulnerability of migrant workers and emphasized the need to ensure that the rights of precarious workers in Canada are not forgotten. Relying on the same expert witness who testified in Peart, Dr. Kerry Preibisch, an Associate Professor in the Department of Sociology and Anthropology at the University of Guelph specializing in international migration, the Vice-Chair stated in the instant case: “I have commented in this decision and in my decision in Peart … regarding the particular and special vulnerabilities of migrant workers in Ontario, especially in light of the closed work permit that requires them to be tied to one employer and so be under the constant threat and fear of losing their employment and being repatriated without reason and without any avenue for appeal or review.”

This vulnerability was described by the Law Commission of Ontario in its April 2013 report entitled “Vulnerable Workers and Precarious Work,” reviewed in Lancaster’s Employment Standards Law, October 15, 2013, eAlert No. 70. The report identified the existence of widespread violations under the OntarioEmployment Standards Act, relating to temporary foreign workers, including requiring them to work late and on weekends without receiving either overtime or vacation pay. The report describes how the fear of repatriation acts as a disincentive for such workers to access legal remedies intended to protect them, and calls on the provincial government to implement a range of new measures. In response, Bill 18, the Stronger Workplaces for a Stronger Economy Act, 2014, reviewed in Lancaster’s Labour Law, December 11, 2014, eAlert No. 377, passed on November 6, 2014, makes significant changes to a number of employment-related statutes, including the Employment Standards Act, the Occupational Health and Safety Act, the Employment Protection for Foreign Nationals Act (Live-in Caregivers and Others), and the Workplace Safety and Insurance Act. The legislation received Royal Assent on November 20, 2014, with a number of the most significant changes coming into force three months after that.

For other decisions that have recognized the particular vulnerability of foreign workers, see PN v. FR and Another (No. 2), 2015 BCHRT 60 (CanLII), reported in Lancaster’s Human Rights and Workplace Privacy, June 17, 2015, eAlert No. 262, in which the B.C. Human Rights Tribunal awarded a Filipino domestic worker who was subjected to six weeks of exploitation and sexual abuse upon her arrival in Canada, including being underfed and forced to perform sex acts under threat of being deported, $50,000 in damages as compensation for injury to dignity, feelings, and self respect, as well as over $5,000 for lost wages, noting the “acutely vulnerable situation” she was placed in and ruling that the impact of the sexual harassment and discriminatory conduct was so severe that an award at a “high level” was warranted; and Monrose v. Double Diamond Acres Limited, 2013 HRTO 1273 (CanLII), reported in Lancaster’s Human Rights and Workplace Privacy, January 30, 2014, eAlert No. 220, in which the Ontario Human Rights Tribunal awarded $23,500, including $18,000 in non-pecuniary losses, arising from Code violations to a migrant worker who was called a “monkey” by his employer and later fired and deported from Canada, noting the particular vulnerability of migrant workers, who are often not in a position to assert their rights.

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