The Canadian Bar Association
Employment & Labour

High bar in sexual misconduct cases essential, ruling shows

Canadian Press THE CANADIAN PRESS

TORONTO — A woman who endured constant on-the-job sexual harassment before being unceremoniously fired when she complained deserved "moral damages'' from her former employer, Ontario's top court ruled Wednesday.

The decision affirmed a lower court's $60,000 award to Melissa Doyle against Zochem Inc. for the manner in which she was fired.

In addition, the Ontario Court of Appeal ordered the zinc-oxide producer based in Brampton, Ont., to pay Doyle another $40,000 to cover her legal costs given that its conduct in pursuing the appeal was a "continuation of its oppressive conduct'' toward her.

"This ruling underscores that employers will be held to a very high standard when it comes to sexual misconduct in the workplace and shows the significance of taking such complaints seriously," Toronto employment lawyer Marie-Helene Mayer tells AdvocateDaily.com.

"There is nothing casual about sexual harassment and employers today are expected to play by the rules and ensure employees are not punished for invoking their rights — especially women," says Mayer, partner with Allen & Co. LLP, who comments generally and is not involved with the case.

"It's 2017. It's time to stop allowing this type of conduct to go unpunished." 

In May last year, then-Superior Court justice John Belleghem awarded Doyle general damages equal to 10 months' salary, $25,000 for sexual harassment, and the $60,000 in moral damages. Zochem appealed only the moral damages award, arguing $20,000 would have been appropriate. Among other things, the company claimed that Belleghem had considered factors irrelevant to the firing.

The Appeal Court, however, saw it otherwise.

"Although the trial judge considered both factors that were relevant and irrelevant to an award of moral damages, the award was nonetheless justified,'' the Appeal Court said in its decision. "The termination was cold and brusque (and) there is evidence of untruthful, misleading or unduly insensitive conduct.''

Court records show that Doyle had worked for Zochem for nine years — one of about 50 employees. At the time of her termination, she was the only woman working at the plant, where she was supervisor and health and safety co-ordinator.

Evidence at trial was that the maintenance manager, Bill Rogers, repeatedly harassed her. Among other things, Rogers would stare at her breasts and pretend to take a photograph of them, court records show.

At a meeting in July 2011, Doyle raised safety concerns. What she didn't know was that the company had already decided it was going to fire her — despite having insisted just days earlier that her job was safe. Rogers, however, did know of the company's plans to axe her. He used the meeting to demean Doyle in front of others, prompting her to flee in tears, court records show.

Doyle, who was 44 years old at the time, complained about the sexual harassment to the assistant general manager, Stephanie Wrench, who fired her days later, court records show. 

In his decision last May, Belleghem found Wrench's response to the sexual harassment complaint was "insensitive to the point of verging on cruel.'' He also noted a human resources consultant suggested to Doyle that the harassment complaint was damaging to Rogers' reputation.

"This was like rubbing salt into a wound,'' Belleghem wrote. "She was being asked to sign off any rights she may have had arising out of her years of harassment, and at the same time, if she chose to do so, add to her pain by doing something to reinstate the reputation of her harasser.''

In rejecting Zochem's appeal, the court noted that it has long been legally established that an employer must act in good faith in dismissing an employee. Where it is unfair or unduly insensitive, it may have to pay what are now known as moral damages.

Zochem had previously been ordered to pay Doyle $424,584 in legal costs.

© 2017 The Canadian Press

- With files from AdvocateDaily.com

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