Precarity, Sexual Harassment, and Low-Waged Work: A Case Comment on Silvera v. Olympia Jewellery Corporation

I rarely write case comments, but thought that it was warranted for the recent superior court decision in Silvera v. Olympia Jewellery Corporation,  2015 ONSC 3760 (CanLII). It’s a fairly complex decision, so this post is going to run a bit long and be somewhat wonky. It’s an important decision as it’s both legally significant in an employment law and human rights context, and also deals with precarious, low-waged work in a non-unionized environment. This is exactly the sort of case that rarely ends up in a courtroom, but represents what tens of thousands of workers experience everyday in Ontario.

The Facts

Michelle Silvera (“Silvera”) was employed for a period of nineteen months, from August 2008 to March 2010, by Olympia Jewellery Corporation (“Olympia”). She was a receptionist/assistant administrator who was earning around $28,000.00 per year. It started as a temporary position, but turned into a permanent one. Olympia was owned by Raphael Bazik (“Raphael”), but was managed by Morris Bazik (“Morris”). Raphael wasn’t involved in the day-to-day management of the business, while Morris was the Silvera’s direct supervisor. Olympia was a small jewelry manufacturer with approximately ten employees.

There are some important facts to notes with respect to Silvera’s indelible personal characteristics. Silvera is a racialized immigrant who came to Canada as a child. She left home at a young age, had a child in her mid-20s, and was a single mother at the time these events occurred. Her work history was mixed, but was characterized by retail and service sectors jobs, which could easily be characterized as precarious employment.

The Harassment and Termination

Morris started sexually harassing Silvera after about a year of employment. In the fall of 2009 Morris sexually assaulted Silvera by grabbing her breasts. After this first incident Morris started buying her lunch, driving her home, bringing her gifts, and insisting that she wear jewelry that he had given her.

Around Christmas 2009 Morris sexually assaulted her again by grabbing her buttocks. This event occurred when all the other employees were off and Morris had called Silvera into work. The final sexual assault took place on February 19, 2010, when Morris attempted to put his hands down the front of his shirt.

There was also a pattern of behaviour where Morris engaged in anti-Black racism, general racism, and also racism directed at Barack Obama. Morris also had the bad habit of both leaving sexist, racist email on Silvera’s desk, but also of showing her pornography on his computer. This should come as no surprise, but Olympia had no sexual harassment or human rights policies. 

Silvera had to have emergency dental surgery on February 23, 2010, which resulted in complications requiring her to be off work until March 8, 2010. Morris was aware of these events, but demanded the contact information for her dental surgeon. Upon her return to work Morris told Silvera that he didn’t believe that she had undergone dental surgery and that she had gone away for the weekend. He required her to get a doctor’s note, which she immediately obtained. On March 12, 2010, Morris told Silvera by phone that her employment had been terminated.

Morris added insult to injury by indicating in the termination letter than Silvera had been away from work for a prolonged period, avoiding contact, and not coming into the office when requested. The judge rejected all of these assertions. Morris caused Silvera further grief by holding up her Employment Insurance claim, which meant she was without any source of income for well over two months.

The Lawsuit and Verdict

The lawsuit is fairly complex. Silvera and her daughter requested damages. With respect to Morris’ conduct Silvera claimed the following: (a) general damages for pain and suffering, including aggravated damages, in the amount of $150,000.00; (b) punitive damages in the amount of $75,000.00; (c) $33,924.75 in damages for loss of earning capacity; (d) costs of future therapy and care in the amount of $42,750.00; and, (e) $40,000.00 in damages for a breach of the Human Rights Code.

Silvera claimed the following against Olympia: (a) $7,475.50 for wrongful dismissal; (b) aggravated damages of $30,000.00; (c) punitive damages of $50,000.00; and, (d) special damages for loss of past income of $57,869.13. Silvera’s daughter also brought a claim under the Family Law Act for $25,000.00.

The verdict was in favour of Silvera; it awarded damages of $206,711.93 to Silvera and $15,000.00 to her daughter under joint and several liability, and also awarded a further $90,344.63 to be paid to Silvera from Olympia.  See paragraphs 105 through 179 for a full breakdown of damages.

Legal Analysis

Legally, this case has a lot of interesting things happening in it. I’m going to cover a few of them. You really need to read the entire decision to get a handle of everything.

First, there’s the human rights aspect. The Bill 107 reforms to the Human Rights Code permitted the Courts in Ontario to award human rights damages, but only in cases where there were other causes of actions so as not to preempt the role of the Human Rights Tribunal of Ontario. There haven’t been a large amount of cases making use of the change in law, but that could change, as lawyers get more comfortable with pursuing human rights claims through the Courts. 

In this case the judge awarded Silvera $30,000.00 in damages for breaches of her human rights. This figure was arrived at after considering the seminal decision in ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (Div. Ct.). Here are the other cases that I was able to find where human rights claims were argued in the context of employment law: Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799 (CanLII); Bray v. Canadian College of Massage and Hydrotherapy, 2015 CanLII 3452 (ON SCSM); and, Partridge v. Botony Dental Corporation, 2015 ONSC 343 (CanLII).

Second, another interesting aspect is the punitive damages award of $10,000.00 against Olympia for the manner of her dismissal, which is rooted in the analysis found in the decision of Honda v. Keays, [2008] No. 40 (“Keays”). The Keays damages (here's a backgrounder) appear to have been triggered given that the termination occurred “days after the last (and most serious) incident of sexual assault and battery. What Silvera experienced (i.e. a combination of being sexually harassed and then terminated) is fairly routine and common for women in Ontario’s labour market, so it will be interesting to see how much this case gets utilized in the context of employment law litigation.

Third, the claim under the Family Law Act is relatively rare of employment law litigation. Justice Glustein awarded Silvera’s daughter $15,000.00 in damages for the deterioration and ongoing weakness of their mother-daughter relationship.

Finally, this case alongside O.P.T. v. Presteve Foods Ltd., 2015 HRTO 675 (CanLII), which awarded $150,000.00 for sexual harassment, point to a quickening upward trend for awards arising out of human rights claims. Perhaps it’s the Ghomeshi-effect, but there appears to be a harsher approach developing with how adjudicators are dealing with serious cases of sexual harassment; however, two cases do not make a discernible pattern and this area will have to be monitored for future developments.

Precarious Work in the Context of Employment Law

What I find fascinating about this case is what it says about the labour market of Ontario and how precarious work effectsindividual employees, their families, and the wider community. One of the things that I simultaneously abhor and love about labour law is historical record that left by cases. It’s fascinating to analyze the social, political, and economic trends in play, but it also points to horrible realities that play out as the lived experience of precariously employed individuals in our society – particularly ones who face intersectional oppression and discrimination arising out of their social location and the social context of their employment. 

Silvera’s financial dependence on Morris is apparent throughout the decision. She felt powerless to reject or take action over the sexual assaults, his behaviour, or the constant harassment. She put up with everything for months and probably would have continued along without doing anything, but for her termination. Morris certainly understood and took advantage of the enormous power imbalance between him and Silvera. He actually utilized wage theft, unpaid overtime, and after-hours work as means to humiliate Silvera. See, the sad thing is that Silvera felt she couldn’t turn to anyone, not her family or the government, for help – this is a reality that precarious workers face daily: no one is there to help or advocate for them.  

Morris isolated her from other employees to carry out the sexual assaults and succeeded in driving a wedge between Silvera and her daughter. The entirety of the events had a terrible on Silvera’s family and permanently damaged her relationship with her daughter. This led to a litany of mental health and addiction issues that precipitated the need for medical intervention. The judge even found it fitting to award damages for future care and therapy, which points to ongoing health complications.

After reading the decision it’s clear that Silvera blamed herself for situation. There’s a thread of disposability that flows through how Morris terrorized Silvera for months. Morris’ predatory behaviour is nothing less than criminal and one wonders why he hasn’t been charged criminally. It’s actually shocking how few cases of workplace sexual assault lead to criminal charges. Police in Canada appear to be ill equipped to address this persistent problem and one wonders why governments across Canada haven’t taken a moreactive role in advancing human rights in the context of the private sphere of employment.

The one thing that resonated with me was this passage: “All she wanted was a “normal workplace” and asked herself “why me?” No doubt many of us wonder why we're subjected to horrible bosses and predatory behaviour. It’s not our fault; rather our economic system prioritizes structural power imbalances over actually protecting the health of individual working citizens. People just want a normal workplace where they earn a decent paycheque and go home at the end of the day, but as we’re seeing this is increasingly a reality for so many of us.