Human Rights Office

Human Rights Office
Human Rights Office

 Silvera v. Olympia Jewellery Corporation and Morris Bazik 2015 ONSC 3760 (CanLII) 

Summary:

Michelle Silvera started working for Olympia Jewellery in August of 2008 as a receptionist/assistant administrator. In this role Michelle earned approximately $28,000 a year. Raphael Bazik was the sole owner of Olympia Jewellery and his brother Morris was in charge of operations. Morris was also Michelle’s supervisor. Over the course of Michelle’s two years of employment with Olympia Jewellery, she was subjected to a series of sexual assaults and battery, sexual harassment and racial harassment, all perpetrated by Morris. In addition, Michelle was fired by Morris after having missed worked due to pain associated with dental surgery. In this case, Michelle filed for damages arising out of i) wrongful dismissal by the defendant, Olympia Jewellery, and ii) series of sexual assaults and battery, sexual harassment, and racial harassment perpetuated by the defendant, Morris. Michelle’s daughter, Aleisha, also filed for damages of $25,000 under the Family Law Act (FLA).  Aleisha alleged that because of Morris’ actions, her mother failed to provide her with guidance, care and companionship. After the above incidents Michelle suffered from “chronic PTSD, “major depressive order, recurrent moderate” and “alcohol abuse in sustained remission” (para 91). Accompanying these mental health concerns, Michelle was unable to look for work, after being fired, due to Morris’ conduct. In this case it was determined that Michelle’s rights under the Code had been directly violated by her supervisor. In particular it was stated that Michelle’s “rights (i) under s. 5(1) to equal treatment with respect to employment without discrimination because of race or sex, (ii) under s. 5(2) to freedom from harassment in the workplace by the employer or agent of the employer because of race, and (iii) under s. 7(2) to freedom from harassment in the workplace because of sex” were violated.   It was also found that the defendant’s conduct in relation to the wrongful dismissal was “vindictive, reprehensible and malicious” (para 167).  Michelle’s dismissal from work came days after the last (and most serious) incident of sexual assault and battery. As such, Michelle was awarded general damages, as well as aggravated and punitive damages. Aleisha was also awarded damages und the FLA.

Question(s) to be Determined:

  1. Did the respondent violate Ms. Silvera’s rights under s. 5(1), s. 5(2) and s. 7(2)[1] of the Code?

Findings:

  1. Did the respondent violate Ms. Silvera’s rights under s. 5(1), s. 5(2) and s. 7(2) of the Code?

YES

Reasoning:

  1. In this case it was found that the respondent, Olympia Jewellery and Morris Bazik had violated Ms. Silvera’s Code protected rights. Explaining the high amount of damages awarded in this case it was stated:

“There are aggravating factors arising from Morris’ Conduct. Morris not only did not comply with his apology and promise to stop, he escalated his assaults at work. In the third assault, he trapped Michelle behind her desk, caused her physical harm by tightening a chain around her neck, and engaged in the conduct even though there were other employees working at that time at Olympia.

Further, Morris engaged in sexual coercion by requiring Michelle to wear particular items of jewellery, and then forcing Michelle to accept rides, gifts, and drinks with Michelle feeling that he was expecting a quid pro quo of sexual favours. The unpredictable nature of the assaults meant that Michelle was always on guard for another assault, wearing a coat at all times in the office to try to avoid further incidents.

Finally, Morris’ sexual and racial harassment through inappropriate jokes and emails denigrated Michelle based on her gender and the colour of her skin” (para 140-142).

Remedies:

In total the damages award to Michelle and her daughter Aleisha are $312,056.56.

In this case the damages are as follows:

(i)                 Defendants are ordered to jointly and severally pay Michelle damages of $206,711.93 for Morris’ conduct, broken down as (a) $90,000 for general and aggravated damages, (b) $10,000 for punitive damages, (c) $30,000 for breach of the Human Rights Code, (d) $42,750 for costs of future therapy care, (e) $37.18 for the subrogated OHIP claim, and (f) $33,924.75 for future lost income;

(ii)               Olympia is ordered to pay Michelle $90,344.63 for wrongful termination, broken down as (a) $7,475.50 less applicable statutory deductions for the three-month notice period, (b) aggravated damages of $15,000, (c) punitive damages of $10,000, and (d) $57,869.13 for lost income; and,

(iii)            Defendants are ordered to jointly and severally pay Aleisha $15,000 in damages under the FLA.

 

[1] s. 5(1) –right to equal treatment with respect to employment without discrimination because of race or sex.  s.5(2) freedom from harassment in the workplace by the employer or agent of the employer because of race.

s.7(2) freedom from harassment in the workplace because of sex.