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Employment & Labour

$75,000 human rights damages award should have been higher

The owner of a tattoo parlour is lucky he didn’t have to pay more than the $75,000 ordered by the Human Rights Tribunal of Ontario (HRTO), says Toronto employment and human rights lawyer Sean O’Donnell.

The case, which involved a claim for damages brought by a 15-year-old intern against her former boss, came after the owner pleaded guilty to criminal charges of sexual assault, sexual touching and sexual interference, relating to an escalating series of incidents over the summer while she worked there.

“Frankly, I don’t think $75,000 was enough,” says O’Donnell, principal of SJO Legal.

“When I read the case, I was sick to my stomach," he tells AdvocateDaily.com. "When you consider the young age of the applicant and the significant effect it had on her self-esteem, confidence and overall mental health, it seemed like the damages should have been much higher — especially given the awards in similar cases.”

In making the award, HRTO vice-chair Maureen Doyle referred to another recent case in which a single mother who was subjected to prolonged harassment, sexual assaults and threats from her landlord was granted $200,000 in compensation for injury to dignity, feelings and self-respect.

“The facts in both cases were pretty ridiculous, but I would have thought the earlier decision would have helped the young lady in the tattoo parlour case obtain a higher amount,” O’Donnell says. "However, that may be due to the quantum of damages claimed by the applicant, which was the $75,000 ordered."

Despite questioning the level of damages awarded in the tattoo case, O’ Donnell says he is encouraged to see the tribunal escalating awards for the most egregious cases.

“Typically, $40,000 or $50,000 appears to have previously been the maximum level, even for really serious cases. It wasn’t uncommon to find some that involve damages as low as $10,000 or less,” he says. “I think these are good decisions, although they are, to some extent, outliers.”

The teen in the tattoo case began unpaid work at the Toronto business in 2014 in the hope of establishing herself as a tattoo artist. The owner had an existing relationship with the girl’s family and had even used a loan from her parents to get the operation off the ground. In her decision, Doyle said the betrayal of trust warranted a monetary award.

"The applicant was 15 years old at the time of these events, the individual respondent was an adult in a position of authority over her, and the criminal conviction underscores the inappropriateness of any consideration of any degree of 'consent' in the circumstances of this case," Doyle wrote.

"The respondent's actions toward the applicant constituted serious violations of her rights," she added.

O’Donnell says the extreme nature of the case makes it difficult to draw wider lessons about the availability of human rights damages for victims of less serious conduct.

“When it comes to sexual harassment cases, thankfully, not all are going to have facts as egregious as this one,” he says. “Higher damages tend to be reserved for cases where the applicant is particularly vulnerable or if the conduct escalated to the level of sexual assault.

“It’s all going to depend on the severity of what happened to the applicant and the effect it had on them,” O’Donnell adds.

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