A recent decision released by the Alberta Human Rights Tribunal, Oliva, Pascoe, and Strong v Gursoy, 2024 AHRC 45, awarded more than $230,000 in general damages to three complainants. To the best of our knowledge, this is the highest award for general damages in the Alberta human rights context to date.
Allegations of gender discrimination and harassment
The hearing involved six complaints from three complainants, Oliva, Pascoe and Strong (each brought a discrimination complaint and a retaliation complaint). The complaints were initially brought against the employer TJ Construction Management Ltd. (“TJCM”). However, after TJCM was assigned into bankruptcy, the director and sole shareholder (and perpetrator of all of the alleged actions), John Gursoy, was added as a personal defendant.
All three discrimination complainants alleged that Gursoy had engaged in gender discrimination because he had sexually harassed the complainants. This included sexually suggestive nicknames, comments about personal appearance and inappropriate touching. Two of the complainants were instructed by Gursoy to find him “sugar babies” whom he could buy gifts in exchange for sex.
One complainant (Strong) was demoted from executive assistant to receptionist after the director discovered that she was four months pregnant. The complainant was also subjected to inappropriate touching of her belly and comments that she would be his “baby mama” or a “sexy mama.”
The Tribunal found that the complainants were repeatedly and persistently subjected to sexual harassment which had a profound negative impact on the complainants. The Tribunal also found that Oliva was discriminated against on the basis of physical disability because Gursoy had demanded that she share details about a medical appointment that had caused her distress.
Gursoy filed a civil claim in 2020 against Oliva and another civil claim in 2021 against all three complainants alleging that they were contacting clients, trades, employees or business partners and harming his business. The Tribunal found that there was a link between the civil claims and the discrimination complaints, and that the claims were a deliberate response on the part of Gursoy to exact “payback” on the complainants. He was found liable for retaliation as a result of filing the civil claims.
Notably, Gursoy was not represented by legal counsel at the hearing and was removed from the hearing at the conclusion of his testimony after he was found to be engaging in an abuse of the Tribunal’s process. This decision impacted the evidence that the Tribunal considered in arriving at their decision.
Conclusion on damages
In arriving at its conclusion on damages, the Tribunal referenced the fact that human rights awards have been increasing in Alberta since Walsh v. Mobil Oil Can. (2013), where the Court emphasized the need for adequate and meaningful discrimination damage awards. The Tribunal noted awards in other jurisdictions where sexual harassment has had a profound effect on a complainant have reached the threshold of $50,000. The Tribunal also referenced Sunshine Village Corporation v Boehnisch, 2020 ABQB 692, in which the Alberta Court of King’s Bench cautioned that general damages for discrimination in Alberta have been historically extremely modest and should not be limited by these arbitrary benchmarks.
The Tribunal awarded the following:
- To Oliva, $75,000 in general damages for discrimination on the basis of gender (sexual harassment) and discrimination on the basis of physical disability, plus lost wages in the amount of $26,800 (less statutory deductions). In addition, the complainant received $50,000 in general damages as a result of retaliation, plus special damages in the amount of $3,921.03 for the legal fees incurred to defend the civil claim.
- To Pascoe, $30,000 in general damages for discrimination on the basis of gender (sexual harassment) plus lost wages in the amount of $11,200 less statutory deductions was awarded. This complainant was also awarded $25,000 in general damages for retaliation, plus special damages in the amount of $1,353.88 for the legal fees incurred to defend the civil claim.
- To Strong, $50,000 in general damages was awarded for discrimination on the basis of gender (sexual harassment).
This decision should serve to remind Alberta employers that allegations of sexual harassment are taken seriously by Courts and Tribunals and should therefore be seriously considered by employers as well. This case confirms that there is no cap or ceiling on general damage awards in Alberta. It will likely become more common to see awards in excess of $25,000, especially when they involve misconduct that would have a profound negative impact on a complainant.
Employers faced with a human rights complaint should seek legal advice well in advance of a hearing. The MLT Aikins Labour & Employment team has extensive experience advising on discrimination and human rights-related matters both prior to a complaint being filed and throughout the hearing process. To learn more about how this decision could impact you and your organization, contact a member of our team today.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.