$50k in General Damages for Sexual Harassment in Alberta
Yaschuk v Emerson Electric Canada Limited, 2022 AHRC 62 (Munn) is a recent decision by the Human Rights Tribunal of Alberta (the “Tribunal”) which awarded a complainant employee general damages of $50,000 and 11 weeks of lost wages in the amount of $42,750 for sexual harassment that fell on the lower end of the spectrum for seriousness.
This case is interesting and important because general damages (pain and suffering) awards in the $50,000 range are rare, especially in Alberta.
The following were the pertinent facts found by the Alberta Human Rights Tribunal:
- The Complainant was subjected to sexual harassment by the human resources manager to whom she reported (the “Manager”) and she was terminated when she complained to management about his behavior.
- The behavior that formed the basis of the Complainant’s complaint included the following:
- The Manager asked her to view a video clip from “Movie 43,” a comedy film, in his office which contained sexual content and the Manager also emailed a link to the video to the complainant.
- The Manager engaged in conversation and joking of a sexual nature in the office.
- The Manager referred to the complainant as a credenza on multiple occasions in reference to his power to hire or fire her.
- The Manager engaged in flirtatious or suggestive behavior and commentary on social occasions outside of the office which including an innuendo that they should have an affair.
- The Manager involved himself in the complainant’s personal relationships by inquiring and asking about her dating life.
- The Manager made suggestive comments about other women in the office.
- When the complainant separated from her common-law spouse, the Manager’s sexual commentary and activities escalated significantly and culminated in the termination of her employment when he learned that she had reconciled with her common-law spouse.
- The day prior to the termination of her employment, the Complainant sent an email to the VP of Human Resources (the “VP of HR”) regarding the sexual harassment she was being subjected to.
- The VP of HR conducted an internal investigation of the allegations but chose not to interview many of the witnesses provided by the Complainant and did not review or preserve the email communication between the Complainant and her Manager.
- After the Complainant was terminated, she lost a job opportunity on the basis of a comment of a former coworker regarding her job performance, but the Complainant genuinely thought her employer had told the potential employer that she had been terminated for misconduct.
- As a result of the termination of her employment, the Complainant’s psychological health was significantly affected and it prevented her from engaging in meaningful employment. In particular, the Complainant was diagnosed with an adjustment disorder.
Analysis / Conclusion
In some cases, the Director of the Tribunal will make some arguments on behalf of a self-represented complainant. The Director chose to do so in this case. The Director sought general damages of $60k for the Complainant on the basis that where discrimination leads to serious mental illness, damages should be at the higher end of the scale. The Director also sought a significant amount of damages for loss of income in the amount $641,711.40 for loss of past income and $350k for future loss of income, plus damages for retraining, loss of housekeeping, and future cost of care.
Meanwhile, the Complainant sought damages that would have totaled over $4.4 million.
The Tribunal found that the conduct in this case fell at the very low end of seriousness in the spectrum of sexual harassment set out in Foerderer v Nova Chemicals Corporation but accepted that the discriminatory conduct in this case had a profound effect on the Complainant. In particular, the Complainant’s psychological health was significantly affected and prevented her from engaging in meaningful employment.
The Tribunal also noted that the Complainant tried to complain to her employer that she was being harassed at work but that the employer’s investigation of her complaints was flawed: the employer asked for proof and the Complainant made reference to email communication and witnesses. However, the employer did not interview many of the witnesses and did not review or preserve the email communication between the Complainant and the Manager.
However, the Tribunal found that the employer had not retaliated against the Complainant for making a human rights complaint, because the Complainant’s inability to obtain a new job was caused by a combination of the economic climate at the time and an informal comment by a former employee to a new potential employer that the Complainant was difficult to work with.
The Tribunal also noted that the VP of HR had wanted the Complainant to be replaced several months prior to her actual termination due to performance issues but that her Manager had defended her up until she reunited with her common law spouse. Therefore, the Complainant would have likely remained employed until the Manager’s retirement which had already been planned to take place only 11 weeks after her termination.
The Tribunal declined to award general damages in the range of $125k and $176k on the basis that the cases that supported those amounts dealt with sexual assault or serious mental illness which resulted in disability.
The tribunal found that the employer was not responsible for the expenses related to the complainant’s job search after September 30, 2014 (when her manager retired) as the complainant would have incurred these expenses regardless of the respondent’s discriminatory conduct because her contract would have been terminated.
In the result, the Complainant was awarded $50,000 in general damages for pain and suffering, plus 11 weeks of lost wages.
In this case, the Tribunal awarded a greater award of general damages than would usually have been expected for the type of conduct involved. A significant factor in the amount of the award was the fact that the Complainant went on to develop a mental illness which impacted her employability, and the employer conducted such a lacklustre investigation into the sexual harassment. One cannot help but suspect that the award would have been even higher if the employer had not had evidence that the Complainant’s employment had been previously at risk due to performance issues and that her employment was going to end no matter what when the Manager retired.
Finally, it is worth highlighting that the Director was seeking amounts to housekeeping, future loss of income, and future cost of care for the Complainant. These are not commonly sought or awarded in human rights, but are common in personal injury cases. Although the Tribunal declined to award these amounts in this case, the Tribunal did not say they could never be awarded, and the Director’s argument for these sorts of damages might help others claim for this sort of damages.
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