In December 2014, the Government of Saskatchewan amended The Saskatchewan Human Rights Code to – among other things – raise the maximum possible award for injury to feelings, dignity, and self-respect from $10,000 to $20,000. This appears to be a response to a decision handed down by the Saskatchewan Court of Queen's Bench in July in the case of John Pontes and Empire Investment Corporation (CHRR Doc. 14-3122). But is this a sufficient response?
In the case of X. v. Empire Investment Corp., the Saskatchewan Court of Queen's Bench found that John Pontes violated The Saskatchewan Human Rights Code for the fifth time. Mr. Pontes is the sole owner of Northwoods Inn & Suites in Saskatoon, and, once more, he was found to have sexually harassed a female employee.
The Court described Northwoods Inn & Suites as an aging and out-dated facility that is regularly used by individuals who are transient and struggling to get off social assistance. The staff at Northwoods, like the clientele, tend to be disproportionately from groups that are socially and economically marginalized. During her time on staff, Ms. X testified that the workforce was largely composed of recent immigrants and former welfare recipients, most of whom were women.
Soon after she was hired, Ms. X began to receive unwanted attention from Mr. Pontes. He told her she was beautiful, “looked like a movie star”, asked her to bring him coffee and come round his desk so that he could check out her “tight ass”, invited her out for dinner and to visit the back of his van, said he wanted to rub her pussy the right way, and told her that even though he was 66 years old he could still give her the “best orgasm ever”. He asked her if she was a “trickster”, which was his term for prostitute.
After working with Mr. Pontes for about three months, Ms. X began to feel increasingly anxious about being summoned to his office where most of his lewd comments were made. She dreaded Mr. Pontes' attentions, which veered from unwanted sexual commentary to explosive confrontation. She felt emotionally drained, lacking a sense of self-worth and relapsing into drug use, numbing herself with cocaine, even though she had been drug and alcohol-free for a year.
The five decisions against Mr. Pontes reveal that he presides over his “empire” with a “demeaning and abusive managerial style”, subjecting his staff to frequent tirades as well as sexual comments, innuendo and solicitations. He has made racist comments to Aboriginal staff and customers and treated them in a demeaning manner. The Court accepted that Mr. Pontes' conduct showed a “pattern of practice”.
But what is the remedy here? The Court called Mr. Pontes a “repeat offender” and noted that he has been ordered previously to cease and desist, sanctioned with costs for unreasonable and vexatious behaviour, and ordered to post anti-discrimination policies at Northwoods. The Court said: “Mr. Pontes can be presumed to possess full knowledge of what constitutes unacceptable conduct under the Code”. In the case of X, the Court made the maximum allowable award, which at the time was $10,000, for injury to dignity or wilful and reckless discrimination. The Court also awarded 15 months of lost wages to Ms. X, holding John Pontes responsible for her relapse into drug use.
But the total damages awarded against Mr. Pontes were about $44,000. Although in Saskatchewan some commentators called this a “giant award”, in fact, this is remarkably little, considering Mr. Pontes egregious, repetitive, and harmful conduct. One reason why the award is small is because the women who work for John Pontes don't earn much, and 15 months' worth of wages does not amount to a lot. This means that awards for injury to dignity need to be ample enough to balance the fact that women who are poorly paid to start with can never elicit big enough wage compensation awards to make an employer feel the pinch.
Human rights legislation is designed to be remedial not punitive. But remedial does not mean just a band-aid for the individual in question, it means preventing the same discrimination from occurring again. So far, in the case of John Pontes, human rights law has not been successful in being preventive. Increasing the maximum allowable award to $20,000 for injury to dignity is a step but it is not enough.
In the Ontario Human Rights Code there is no cap on the amount the Human Rights Tribunal can award for injury to dignity. That is appropriate, since cases vary, as do appropriate remedies. It should be possible to make an award against an intransigent respondent that is large enough to have some likelihood of preventing further discriminatory harms.