January 26, 2016

A recent decision by one of the Ontario Superior Court’s newest judges shows an encouraging trend towards higher awards for workplace sexual harassment and sexual assault.

Damages

In Silvera v. Olympia Jewellery Corporation, 2015 ONSC 3760, Justice Glustien awarded nearly $300,000 in damages to an employee who had been subjected to repeated sexual harassment, sexual assault, and racial harassment, and then dismissed from her employment without cause or notice. Justice Glustein also awarded $25,000 to the employee’s daughter pursuant to a Family Law Act claisexualharassmentatwork01m.

Only approximately $7,500 of the damages awarded were for the Plaintiff’s entitlement to reasonable notice of termination of her employment; the remainder of the damages related to the Defendants’ outrageous conduct, including racial and sexual harassment, sexual assault, discriminatory treatment, and bad faith conduct in the termination of her employment. Notably, the Defendants did not even appear at trial. As a result, the Court granted the Plaintiff’s motion to strike their defences and deem all allegations in the Statement of Claim as being admitted.

Factual Background

The Plaintiff, Michelle Silvera, was a single mother who had spent the first years of her life in Jamaica, being raised by her great-aunt. She was a survivor of childhood sexual abuse by her step-father, as well as emotional and physical abuse by both her mother and step-father which started when she moved to Canada and lasted until she moved out at age 16. As a result of this abuse, she had suffered from depression and been hospitalized.

Despite this, Ms. Silvera endeavoured to live her life in a positive and healthy way. She had worked hard to recover emotionally. She had held a series of steady jobs and had succeeded in making a happy life for herself and her daughter.

Ms. Silvera began working for the Defendant in 2008. Although she was promised a wage increase, she never received one. She worked under the direct supervision of Mr. Morris Bazik, the brother of the owner, and, effectively, the controlling mind of the business. The Court found that the employer was liable for his treatment of Ms. Silvera.

Throughout her employment with the Defendant, Ms. Silvera was subjected to Mr. Bazik’s racist and sexually degrading comments, as well as being shown pornographic images on his computer. Additionally, Mr. Bazik often required Ms. Silvera to stay late at work, during which time he would ask her personal questions. This led to her revealing to him the history of sexual abuse she had suffered as a child and the resulting estranged relationship with her mother.

Sexual Assault and Lack of Recourse 

Subsequently, Mr. Bazik sexually assaulted Ms. Silvera on three different, and increasingly severe, occasions: he grabbed her breasts, grabbed her General-cropbuttocks, and in the final sexual assault, cornered her, dug his fingers into her neck, which caused her necklace to cut into her skin, and attempted to put his hands down her shirt.

As Mr. Bazik was the controlling mind of the Company, and the owner was his brother, there was nobody in the Company to whom Ms. Silvera could report the assaults. Moreover, the Plaintiff was too afraid to say anything, as she depended entirely on the Company for her livelihood.
Ms. Silvera was terminated from her employment shortly thereafter the last assault , and following a medical leave.

The result of Mr. Bazik’s sexual assaults on Ms. Silvera were profound. Her memories of childhood abuse, which she had previously dealt with, came flooding back and recurred daily. She developed severe anxiety, depression, and post-traumatic stress disorder. She began to abuse alcohol to numb her pain. She became unable to interact with older men. She cried frequently. She was unable to look for work for two years, and as of the date of trial, was still unable to work closely with, or under the supervision of, older men. Her relationship with her daughter was severely damaged.

It is difficult to imagine a more vulnerable person than Ms. Silvera. She was a single mother with no family support network. She was completely dependent on her employer for her income, as she had no other way to support herself and her daughter. Finally, she was a survivor of childhood abuse. Mr. Bazik was aware of all of these facts. The Defendants’ treatment of Ms. Silvera effectively undid all the work she had done to recover from her childhood abuse and significantly affected her life.

Award Breakdown

downloadThe court awarded $7,475 as pay in lieu of notice , $15,000 for aggravated damages, $10,000 for punitive damages, $30,000 for breach of the Human Rights Code, and $57,869.13 for lost income arising out of the Plaintiff’s inability to work for two years due to the Defendants’ conduct.

As damages arising from the torts of sexual assault and battery, sexual harassment and racial harassment, the Court awarded the Plaintiff $90,000 for general and aggravated damages, $10,000 for punitive damages, $33,924.75 for loss of earning capacity (which was based on the difference between her former and current earning capacity over a three year period), $42,750 for the cost of future care (which was based on expert testimony), $37.15 for a subrogated OHIP claim, and $15,000 to the Plaintiff’s daughter for loss of guidance, care and companionship pursuant to the Family Law Act.

The quantum of damages awarded in this decision demonstrates that the Court is starting to “put someits money where its mouth is ” by accompanying its condemnation of sexual harassment and assault in the workplace with hefty damage awards. It is a promising sign for those who have been subjected to sexual harassment and assault at work, and a warning to employers to take seriously their responsibility to protect their employees from such treatment. Employers and employees confused about their respective obligations and rights in these challenging situations should feel free to contact our firm for further advice.

 

by Cody Yorke

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