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Canadian Union of Public Employees, Local 38 v. The City of Calgary, 2013 AB GAA 88297 (CanLII)

Summary:

In this case, the primary issue dealt with was not whether the events complained of by the Grievor had occurred, but what damages were properly payable to the Grievor for what happened to her. At the time of the incidents, the Grievor, MP, was a clerk in the City of Calgary’s Road Division. In November and December 2010, the Grievor was sexually assaulted multiple times by Terry Mutton, a senior foreman for the City of Calgary. In late November 2010, the Grievor reported the assaults to the manager of her division, Mr. Wierzbicki. Mr. Wierzbicki’s response was to install an extension on her desk so that it would be more difficult for Mr. Mutton to touch her from behind. Shortly after the assaults had been reported to Mr. Wierzbicki, he went on vacation and left Mr. Mutton in charge. During this time while Mr. Mutton was the Grievor’s supervisor, he continued to assault her. Taking matters into her own hands the Grievor installed a camera at her desk and recorded Mr. Mutton assaulting her. The Greivor and her husband then took this video to Dean Bell, the manager of Road Maintenance. Mr. Bell launched an investigation with the City’s corporate security and simultaneously, Mr. Mutton was suspended. After this, the Greivor reported the assaults to police. A week after Mr. Mutton’s suspension, the Grievor arrived at work to find her keyboard coated in rat poison. She believed this was in reference to the idea that she was a “rat”. An investigation was launched as a result of this incident, but was never completed. After this incident the Grievor was moved to another facility. After the assault case against Mr. Mutton concluded, on January 5, 2011, the Grievor was directed, by Mr. Bell, to return to her original workplace, the one where the assaults had occurred. This directive, produced severe stress for the Grievor. Despite this, the Grievor returned to work and over the next few months was transferred numerous times between various departments. In August of 2011, she went on stress related medical-leave and was hospitalized twice for contemplating suicide. After these incidents an independent medical exam (IME) was arranged by both the City and the Union.  The results of this IME indicated that the assaults were a primary factor in the Grievor’s psychological state and that extensive therapies would be needed. At this point in time the Grievor continued on as an employee of the City on long-term disability benefits. In this case the employer’s failure to respond to the incidents of sexual assault resulted in the Grievor being awarded over $800,000 in damages (see below for exact number).

Question to be Determined:

1.    Is the Grievor in this case entitled to compensation and if so, what type of compensation?

Findings:

1.    Is the Grievor in this case entitled to compensation and if so, what type of compensation?

YES

Reasoning:

1.    In this case the damages awarded to the Grievor were broken down into distinct categories. The rationale for the provision of damages in each of these categories is included below:

General Damages:

In considering this matter we are satisfied that the Grievor has suffered significant, life changing injuries which will continue to adversely affect her….. the injuries that the Grievor has suffered and continues to suffer and the effect on her enjoyment of life, compounded with the injury to her dignity caused by the discriminatory conduct, and the exacerbation of the negative impacts of the sexual discrimination by management’s complete failure to protect and support her and comply with the Collective Agreement and the City’s Policy, fully support a significant award of general damages (p. 19).

Loss of Income (past and future):

There is no dispute that the Grievor is unable to work, and has been unable to work since August 2011. Further, the Union’s evidence suggests that she may never be able to return to productive employment…. At the very least a return to employment is unlikely unless she has successfully completed the treatment program recommended by the independent psychologist (p. 20).

In the result we conclude as follow with respect to loss of future income:

1. The Grievor will return to work July 1, 2018,
2. She will not return to work at the city;
3. She will earn $30,000 a year;
4. She will retire in 2022;
5. Her future loss of income is $512,149 (p. 24)

Special Damages:

The union seeks $28,800 for the cost of therapy. We are of the opinion that the requirement for therapy was the result of the misconduct of the City’s employees. We therefore direct that the City pay the sum of $28,000 by way of special damages (p. 25).

Remedy:

In the result we make the following award of compensation to the Grievor:
        1. General Damages in the sum of $125,000;
        2. Loss of past income in the sum of $135,630;
        3. Loss of future income of $512,149 less the reduction arising from the application of the 10% part-time contingency and the application of the discount rate of 2.25%;
        4. Pension loss of $68,243, less the reduction arising from the application of the discount rate of 2.25%;
        5. Special damages in the sum of $28,000.