Canada:
Ontario Superior Court Awards $285,000 To Employee For Supervisor’s Violent And Harassing Conduct
07 February 2023
Filion Wakely Thorup Angeletti LLP
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Bottom Line
In Osmani v Universal Structural Restorations
Ltd., 2022 ONSC 6979, the Ontario Superior Court of
Justice (the “Court”) held that an employee (the
“Plaintiff”) was constructively dismissed after he was
subjected to violence and harassment by his supervisor. Universal
Structural Restorations Ltd. (the “Company”) was held
vicariously liable for the supervisor’s misconduct.
This case is notable for being the first employment case in
Ontario to consider the tort of human trafficking. Although the
human trafficking claim was dismissed, Justice Di Luca set out the
relevant test and factors that may be considered in future cases
assessing the tort.
Background Facts
The Plaintiff was employed with the Company as a general
labourer. He was initially hired “off-the-books” prior to
securing his status as a Temporary Foreign Worker.
Throughout the Plaintiff’s 14 months’ of employment, he
was subjected to humiliating and degrading conduct by his
supervisor at the Company. In particular, the supervisor referred
to the Plaintiff using ethnic slurs or as “his bitch” and
made sexual remarks about the Plaintiff’s wife. The supervisor
also made threats related to the Plaintiff’s employment status,
such as suggesting that he could send the Plaintiff back to his
home country of Albania.
The Plaintiff was also repeatedly subjected to violence by his
supervisor in front of his co-workers. Most notably, on one
occasion, the supervisor punched the Plaintiff in the testicles.
The strike was so significant that the Plaintiff’s testicle had
to be surgically removed. The Plaintiff did not file a harassment
complaint but told both the Company’s owner and office manager
about the incident at an office party months later. The Company did
not investigate the incident.
Later, the Plaintiff suffered a workplace accident when he fell
13-14 feet off of a ladder. He could not get up and the supervisor
and the Company failed to call an ambulance, despite the
Plaintiff’s significant injury. The Company also produced a
misleading investigation report and attempted to dissuade the
Plaintiff from filing an injury claim with the Workplace Safety and
Insurance Board (“WSIB”). Soon thereafter, the Company
pressured the Plaintiff to return to work and, upon his return,
assigned him to duties that were beyond his physical
capabilities.
The Plaintiff brought an action for constructive dismissal and,
amongst other claims, sought damages for human trafficking contrary
to the Prevention of and Remedies for Human Trafficking Act,
2017.
The Decision
The Court held that the Plaintiff was constructively dismissed.
The Court found that the Company had condoned an abusive work
environment and engaged in a series of acts that poisoned the
workplace. These acts included: failing to respond to the
Plaintiff’s repeated complaints about the supervisor’s
conduct; failing to investigate complaints or discipline the
supervisor; and crafting a false narrative to blame the Plaintiff
for the workplace accident.
The Court also held the Company vicariously liable for the
supervisor’s violence. The supervisor had struck the Plaintiff
during a work meeting in front of other workers and supervisors.
Due to these factors, the incident was more than an act of battery
that simply occurred at the workplace; rather, the Company had
created a scenario where the Plaintiff was under the direct control
of his attacker, who was tasked with directing work placements for
the Plaintiff and other employees. Furthermore, once the Company
became aware of the battery, the Company did not investigate or
discipline the supervisor, nor separate the Plaintiff from his
supervisor.
With respect to the Plaintiff’s fall, the Court held that
the Company failed to enforce workplace policies designed to keep
staff safe. The Court noted that the Company had produced a
misleading investigation report, interfered with the
Plaintiff’s ability to obtain WSIB compensation, and failed to
modify work tasks consistent with his medical restrictions.
Throughout the decision, the Court emphasized the vulnerable
position of the Plaintiff as his work permit was tied to employment
with the Company.
The Court dismissed the Plaintiff’s claim for damages for
the tort of human trafficking. The Court found that the evidence
did not demonstrate that the Company’s conduct was for the
purpose of exploiting or facilitating the exploitation of a person
trafficked. The Plaintiff had the same working conditions and
remuneration as other employees. To the extent that the Company
exerted control, influence, or direction over the Plaintiff, it was
in the context of a regular employment relationship.
Ultimately, the Court ordered the Company and supervisor to
cumulatively pay over $285,000 to the Plaintiff. This damages award
included: four months’ common law reasonable notice, $100,000
in general and aggravated damages for the tort of battery; $10,000
in general damages for the tort of assault; $50,000 for violations
of the Plaintiff’s human rights; $75,000 in moral damages;
$25,000 in punitive damages against the supervisor personally; and
$25,000 in punitive damages against the Company.
Check the Box
This case serves as an extreme reminder to employers to
investigate all complaints and incidents of workplace violence and
harassment. Employees must receive training on their employer’s
workplace violence and harassment policy and, under the Ontario
Occupational Health and Safety Act, the policy must be
reviewed, at minimum, on an annual basis. While the
supervisor’s misconduct was particularly egregious in this
case, employers may be held liable and incur significant damages in
any case where they fail to correct inappropriate behaviour and to
provide a safe workplace.
This case also confirms that the tort of human trafficking is
available in the employment context where labour trafficking has
occurred, although the threshold to establish this tort is quite
high. Employers should be mindful of the unique challenges and
vulnerability experienced by temporary foreign workers and new
immigrants in the workplace. As these types of workers may feel
less comfortable bringing their concerns to Human Resources,
employers may consider using more proactive measures to ensure a
safe workplace.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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