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On December 16, 2013 an Alberta arbitration panel awarded an employee over $800,000 for lost future income, loss of past income, and general damages, all as a result of a mishandled response to a workplace sexual assault.

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The arbitration between Calgary (City) and C.U.P.E., Local 38 (P. (M.)) (Re), 2013 CarswellAlta 2593, 117 C.L.A.S. 87 (Alta. Arb.), concerned a Calgary city clerk who was working in the roads department and was sexually assaulted on multiple occasions while on the job by senior foreman Terry Mutton. The victim originally brought a grievance and a separate human rights claim before the Alberta Human Rights Commission. All matters were eventually referred to and resolved by the arbitration panel.

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Despite the victim reporting the aforementioned improprieties which took place in late 2010, little was done to protect her and, in fact, the city and the perpetrator’s superior compounded matters. After the victim initially reported the assaults, the perpetrator’s superior, Mike Wierzbicki, left on a vacation and, in turn, left the victim with the abuser, Mr. Mutton. He was in charge of the work site.

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After confiding in her husband and fearing she would not be believed, the victim, who remains anonymous, hid a camera at her work station and recorded the foreman touching her inappropriately.

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A meeting was scheduled with Dean Bell, the manager of road maintenance. Mr. Bell reported the allegations to corporate security and an investigation was launched. However, Mr. Bell described the photos as “inconclusive”. Nevertheless, the foreman was subsequently suspended and he later resigned.

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A week after the perpetrator’s suspension, the victim arrived at work to find her keyboard had been sabotaged with what she believed was rat poison, which her superior later suggested in an e-mail to her were “mouse droppings”.

The panel found that there was no effort to remove the victim from the workplace, nor were any steps taken to ensure no reprisals took place until after rat poison was spread on the victim’s keyboard. Further, her superior compounded matters when he took exception to her safety complaints, minimizing the issue by stating it may just be mouse droppings. The victim was also, in essence, blamed in other written correspondence.

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As a result of the aforementioned conduct, the victim has been on medical leave since August 2011 and has been hospitalized after contemplating suicide. Her recovery is expected to take until approximately 2018.

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As a result of this heinous conduct and the failure to respond, the victim was awarded $125,000 in general damages, $135,630 for loss of past income, $512,149 for loss of future income, $68,243 in lost pension and special damages of $28,000. After certain reductions are applied, this award still exceeds $800,000.

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Given that the claim in this matter at least in part involved a breach of the Alberta Human Rights Act, R.S.A. 2000, c. A-25.5, the victim could seek compensation for all or part of any wages or income lost, including wages from

the date the injury/leave/dismissal arose until the date of her retirement. It was ultimately determined that the victim would be out of work until at least 2018 and would work only in a more limited capacity moving forward. These variables all played into an analysis of loss of future income to the date of expected retirement.

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This case suggests that employers need to be vigilant in that human rights statutes often provide significant mechanisms for individuals to seek financial redress. Claims are now becoming more sophisticated, given the wording of human rights statutes, and damages are often claimed from the date of the repudiation or wrong until the date of trial/retirement. In a typical wrongful dismissal case involving discrimination, such an analysis may supplant the usual common law reasonable notice assessment of damages.

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The arbitration panel found that the extent of the city’s misconduct was relevant to the issue of remedial consequences. Where an employer effectively puts the focus on the employee claiming harassment and de-emphasizes the responsibility of the other employees to avoid the harassment, the employer will generally be exposed to greater liability for damages to the employee.

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As such, the victim in this case was awarded $125,000 in general damages. The abuse had serious and continuing adverse impacts. A psychologist stated that her prognosis was guarded, with at least two to five years of treatment required to improve her functioning.

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The general damages award was based on the injuries that the victim suffered, the loss of enjoyment of life and the injury to her dignity caused by the discriminatory conduct. The award was on the higher end due to management’s complete failure to support the victim.

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This case reaffirms that human rights-based awards are increasing and decision makers are becoming more creative in order to right wrongs. In order for employers to minimize liability exposure, they must follow their own internal policies and ensure management promptly, formally, and professionally addresses workplace harassment and discrimination claims, including those involving sexual abuse. The consequences of a failure to do so can easily lead to a six-figure sum.

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If you are a victim of workplace harassment, workplace bullying, workplace sexual assault, workplace sexual harassment or discrimination, call a Toronto employment lawyer, Toronto labour lawyer and Toronto human rights lawyer at Stitz Litigation. We are an employment and labour law firm in Toronto. Call for a free case assessment.

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