The Ontario Court of Appeal has upheld a jury award of $470,000 in damages, plus a costs award of $150,000, against an employer and a supervisor for the supervisor’s sexual assault of an employee.
The employee, a commissioned salesperson with Deluxe Windows, was sexually assaulted four times by the supervisor, who was also a principal and part owner of the company. The supervisor was convicted criminally of sexual assault and was jailed. The employee had started employment with Deluxe Windows 18 months after moving to Canada.
At trial, the employee testified she felt shame and was afraid that she would be targeted again. She said that she was afraid to leave home and afraid to go shopping without her cell phone; she slept with double locks on her bedroom door, and purchased an alarm system for her home. She experienced nightmares where the supervisor was chasing her and attacking her children. She suffered from insomnia and had difficulty getting out of bed in the morning. She suffered a loss of sexual desire and experiences intermittent suicidal ideations.
The supervisor had argued that the employee’s past experiences, including experiences as a child, “materially contributed” to her current problems, so that the supervisor and employer should not be responsible for damages for all of her current troubles. The jury appears to have rejected that argument.
On appeal, the supervisor argued that the damages award was “grossly disproportionate” and far outside the range of awards in other cases. The Court of Appeal noted that the jury’s damage award was high and “outside of the generally expected range”. However, it was not plainly unreasonable or unjust.
This decision demonstrates that employers can be liable for assaults committed on employees by supervisors, and shows the significant potential damages. The damage award reinforces the need for employers to implement and enforce workplace violence prevention programs, particularly in light of Ontario’s Bill 168 amendments relating to workplace violence and harassment.
M.B. v. Deluxe Windows of Canada, http://www.canlii.org/en/on/onca/doc/2012/2012onca135/2012onca135.html.
