Background
In N.M. v. C.T., 2026 ONSC 365, the plaintiff brought an action against her former employer for sexual assault, which occurred in the workplace. The Ontario Superior Court of Justice awarded the plaintiff damages in the amount of $137,689.
The Plaintiff’s Employment
The defendant owned a bar and restaurant and employed the plaintiff as a server. The plaintiff began her employment with the defendant at 18 years old. At the time of the sexual assault, the plaintiff was 22 years old and the defendant was 52 years old. On the night giving rise to the events of the action, the plaintiff, after finishing her closing duties, stayed to have a drink with the defendant. While the plaintiff was in the restroom, the defendant added more alcohol to the plaintiff’s drink without her knowledge. The defendant then began asking the plaintiff questions of a sexual nature and attempted to kiss her. After this exchange, the plaintiff texted her co-worker “help me.”
The plaintiff then attempted to leave but could not locate her car keys. At the defendant’s suggestion, the plaintiff agreed to sleep in the defendant’s apartment which was located above the restaurant and bar. The defendant’s apartment had two bedrooms and the plaintiff went to sleep in the spare bedroom. The plaintiff was subsequently sexually assaulted by the defendant as she awoke to the defendant in the bed with her in the middle of the night.
The plaintiff contacted the police later that day and criminal proceedings were initiated against the defendant. The defendant pled guilty to sexually assaulting the plaintiff but subsequently alleged he was pressured into pleading guilty.
Damages
The court adopted the framework for assessing damages from the decision in Zando v. Ali, 2018 ONCA 680. First, the court stated that general damages in sexual assault and battery cases are meant to compensate the victim for their pain and suffering and recognize the humiliating and degrading nature of the assault. Second, the court held that the relevant factors when assessing these damages include:
“(i) the circumstances of the victim at the time of the events, including the victim’s age and vulnerability; (ii) the circumstances of the assaults including their number, frequency and how violent, invasive and degrading they were; (iii) the circumstances of the defendant, including age and whether he or she was in a position of trust; and (iv) the consequences for the victim of the wrongful behaviour including ongoing psychological injuries” (at para 13).
Lastly, the court held that any assessment of general damages for sexual assault should be guided by the jurisprudence. The court “must first consider the important characteristics of the case” to determine which cases can be used for comparative purposes to establish the range of damages (at para 14). The court then can proceed to “select an amount of damages within that range, based on the features of the particular case” (at para 14).
The court awarded the plaintiff $75,000 in general damages. Regarding the employment context of the sexual assault, in particular, the court found that as the plaintiff’s employer, the defendant, “was in a position of authority over the plaintiff and was someone the plaintiff trusted. He was far older than the plaintiff” (at para 32).
In addition to general damages, the court awarded the plaintiff damages for future counselling expenses in the amount of $25,000 and delayed entry to the workforce in the amount of $15,000. The court awarded punitive damages in the amount of $5,000, noting it was a “modest amount” as “the defendant was punished in the criminal proceedings, and he is being ordered to pay significant compensatory damages here” (at para 47). The court declined to award damages for loss of competitive advantage and past special expenses.
With respect to damages arising from the employment relationship, the court found that the defendant’s conduct amounted to a constructive dismissal. The court held “that the continued employment of the plaintiff was untenable because of the actions of the defendant” (at para 21). The court assessed the plaintiff’s notice period at three months and awarded the plaintiff $3,000.
Notably, the court did not award the plaintiff moral damages finding that the case did “not fit the typical mould for moral damages” (at para 53). The court found that the defendant did not want to terminate the plaintiff’s employment “but rather his conduct was inconsistent with a continued employment relationship” (at para 53). The Court continued in obiter, stating that awarding moral damages would be duplicative of the other damages awarded.
Conclusion
N.M. v. C.T. illustrates that where a constructive dismissal arises due to the sexual assault of an employee, employers may be ordered to pay sizable damage awards. In this case, the general damage award and future counselling expenses amounted to almost three-quarters of the total judgment. Unlike the shorter notice period of three months in N.M. v. C.T., longer service, older and high-earning employees typically have longer notice periods at common law such that the damages for constructive dismissal alone can amount to six-figure sums.
